Pleadings Assignment 1 - Semester 2 2022

This assignment is marked out of 40 in total and is due to be submitted by 9 October 2022 via the submission point in the Assignment Submission are of the LWZ317 Learnline site.

FACTS

1. On 1 September 2020, Ken Adams (bornon26March1975) fell of his bicycle while riding along the Nightcliff foreshore, in the Northern Territory. He sustained an injury to his right shoulder.

1. Ken was the sole director and an employee of his successful carpentry and painting business at the time of the accident. He did not have any physical restrictions in performing his trade and occupation up to the date he was involved in the bicycle accident.

1. On 3 September 2020, Ken consulted with his GP, Dr Peter Richardson about the injury to his right shoulder following the accident.

1. Dr Richardson referred Ken to Dr Kelly Sax, an Orthopaedic Surgeon, for opinion and management of Ken's shoulder injury.

1. Dr Sax operated her private practice at the Darwin Private Hospital.Dr Sax was not an employee of the DPH, but rather hired a room to operate her private practice from the DRH's premises.The DPH provided Dr Sax with registered nurses to assist in surgeries and to undertake the post-operative care of Dr Sax's patients who recovered in the wards at the DPH.

1. Peter consulted with Dr Sax on 7 September 2020 and Dr Sax referred Peter for an MRI of his right shoulder, which he underwent on 8 September 2020.

1. TheMRIdisclosed:
2. moderateACjointdegenerationwithmarginalosteophytosis
3. supraspinatustendinosis
4. fullsupraspinatustendontear
5. partialinfraspinatusandsubscapularistear
   1. On 10 September 2020, Ken consulted with Dr Sax. Dr Sax explained to Ken the findings of the MRI scan, which was effectively that he had a torn rotator cuff in his right shoulder. Dr Sax informed Ken about both non-surgical options and surgical options for the torn rotator cuff, including the surgical procedure of a rotator cuff repair. Dr Sax also informed Ken that if he underwent the surgical procedure of a rotator cuff repair, he would need to wear a sling on the right shoulder for a period of 6 weeks post-surgery (to avoid further risk of a re-tear) and that he would not be able to remove the sling for 6 weeks, and that he would need to undergo physiotherapy for up to 1 year. Dr Sax also informed Ken about the risks of the recurrence of a re-tear based on the fragile condition of the tendon post rotator cuff repair surgery and that a re-tear would require further surgery to repair the rotator cuff. Ken was also informed of the other risks of the surgery including infection, bleeding and neurovascular injuries.

1. Dr Sax recommended the surgery and Ken agreed to same.

1. On20September2020, Dr Saxperformedthesurgery.

1. At the conclusion of the surgery, and prior to Ken being transferred to the DPH recovery ward, Dr Sax, with the assistance of the anaesthetist, applied a sling to Ken's right shoulder and right arm to immobilize it and to avoid traction (and possible re-tear).

1. Ken was then transferred to the DPH ward. He was required to stay in hospital for 1 week.

1. The day after the surgery Dr Sax reviewed Ken, including checking the positioning of the sling, and Ken reported feeling comfortable. The sling was also properly positioned.

1. Three days after the surgery Ken complained of considerable pain anddiscomfort inhis right shoulder. Dr Sax did not review Ken but instructed the nurses to give Ken some morphine for the pain.The nurses provided Ken with morphine and also noticed that Ken's sling needed to be adjusted as it was loose.The nurses properly adjusted the sling.

1. Ken's pain subsided thereafter and he was discharged from DPH.

1. Ken was subsequently reviewed weekly over the next 4 weeks by Dr Sax with no issues reported. During that time, Ken was also attending physiotherapy, however during his physiotherapy appointment 3 weeks post discharge from DPH, he informed the physiotherapists that he was "removing the sling throughout the day."

1. At his last consultation with Dr Sax (5 weeks post-surgery) he complained of severe pain in his right shoulder.

1. Dr Sax arranged an urgent MRI which revealed that the supraspinatus repair was not intact i.e. there was a re-tear of the tendon.

1. Ken engaged another Orthopaedic Surgeon to carry out the further repair surgery which was ultimately successful.

1. However, Ken is aggrieved by the unsuccessful surgery performed by Dr Sax and complained about the post-operative care. Further, Ken continues to experience symptomology in hisright shoulder following the second surgery including;
2. discomfortandpain;
3. lossofterminalrangeofmovementofrightshoulder;
4. weaknessforrepetitiveworkatoraboveshoulderlevel;
5. limitedliftingcapacity; and
6. difficultyinperformingrepetitivelifting.

1. The abovementioned has severely impacted on his ability to work.

1. Ken alleges that Dr Sax's negligence caused his loss and damage.

1. Ken instructs you to commence legal proceedings in the Supreme Court of the Northern Territory.

Part A (must complete 1 and 2)

1. Construct a Writ endorsed with a Statement of Claim.

1. What is a defence from Ken's perspective?
2. What is a defence from Dr Sax's perspective?

Part B

1. A comprehensive pre-litigation letter is required on behalf of Ken against the prospective defendant/s in accordance with Practice Direction 6 of 2009 issued by the Supreme Court of the Northern Territory.

(10 marks)

Please note that generic words on the forms (as found in the Rules) used in the assignment are to be excluded from the word count for the assignment.

You may invent and insert any facts and particulars that you decide are necessary or desirable (by reference to the principles of pleadings in general an Order 13 of the NT Supreme Court Rules), as long as they are not inconsistent with any of the facts specified in the above scenario.