The plaintiff in a medical malpractice action brought a motion at trial to prohibit the defendant physicians from advancing theories of failure to mitigate and break in the chain of causation, arguing lack of prior notice.
The plaintiff contended that the defendants failed to update an undertaking given at discovery regarding mitigation.
The court dismissed the motion, finding that the plaintiff had adequate notice of the defence theories through the statement of defence, an expert report, and the defendants' pre-trial conference memorandum.
The court held that it would be fundamentally unfair to preclude the defendants from relying on these theories and that the trial remained fair to the plaintiff.