The plaintiff brought a motion for leave to amend the statement of claim to add a surgeon as a defendant in a medical negligence action after the action had already been set down for trial.
The proposed defendant opposed the motion on the basis that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.
The court held that there were genuine issues of fact and credibility regarding discoverability, including allegations that the proposed defendant failed to disclose an intra‑operative complication and may have misled the plaintiff’s counsel.
Applying the approach in Wong v. Adler, the court determined that such factual disputes should not be resolved on a motion to amend.
The surgeon was therefore added as a defendant with leave to plead a limitation defence.
