Ahuja v Chambeyron
[2021] ACTSC 267
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Ahuja v Chambeyron |
| Citation: | [2021] ACTSC 267 |
| Hearing Date(s): | 11 October 2021 |
| Decision Date: | 15 October 2021 |
| Before: | Crowe AJ |
| Decision: | See [71] |
| Catchwords: | PRACTICE AND PROCEDURE – APPLICATION – Application to |
| compel Defendants to comply with s 64 of the Civil Law (Wrongs) | |
| Act 2002 (ACT) by providing particulars to Plaintiff ’s solicitors within 14 days from the date of the order – whether the | |
| Defendants are in breach of Ch 5 of the Civil Law (Wrongs) Act | |
| 2002 (ACT) – whether claimant obliged to provide meaningful | |
| particulars of act or omissions of respondent said to constitute the | |
| breach of the relevant duty of care – whether Defendants failed to | |
| comply with the duties imposed under ss 51 and 64 of the Civil | |
| Law (Wrongs) Act 2002 – operation of s 78 where defendants in breach – whether the defendants should pay Plaintiff ’s costs for | |
| the application. | |
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 49, 50, 51, 52, 54, 59, 61, 63, 64, 68, 78, Ch 5, Pt 5 Civil Law (Wrongs) Regulation 2003 (ACT) s 4 Limitation Act 1985 (ACT) s 16B |
| Personal Injuries Proceedings Act 2002 (Qld) s 9A(9) | |
| Cases Cited: | Van Kleef v Tran [2016] ACTSC 316 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Al-Rawahi v Niazi [2006] ACTSC 84; 203 FLR 94 |
| Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 | |
| Parties: | R Ahuja (Plaintiff) |
| H Chambeyron (First Defendant) D Booth (Second Defendant) | |
| Representation: | Counsel |
| H McCay (Plaintiff) | |
| K Oldfield (Defendants) | |
| Solicitors | |
| Avant Law (Plaintiff) | |
| Commins Hendriks (Defendants) | |
| File Number(s): | SC 384 of 2021 |
| Crowe AJ | |
| Background |
1. The plaintiff is a medical practitioner who is alleged to have provided treatment to the first defendant in relation to the birth of her child at Calvary Hospital in June 2019. The second
defendant is the first defendant’s partner. He makes a claim for mental injury consequent
upon the injury said to have been occasioned to the first defendant. On or shortly after 25 November 2019, the plaintiff was served with three notices of claim pursuant to the Civil Law (Wrongs) Act 2002 (ACT) (CLWA). These notices were completed for the first and second defendants, and also for the child. It is sufficient for current purposes to refer to the notice of claim made by the first defendant.
The notice of claim form
2. The notice of claim form used in this case is not entirely appropriate for a claim in respect
of alleged medical negligence. Thus, the form requires details to be given of the ‘Place of Accident (include street and town if applicable) ’. That is followed by the request: ‘Please provide a description of the accident.’ The following appears in the first defendant’s notice
of claim in relation to each of these respective items:
Place of accident (include street and town if applicable)
Calvary John James Hospital, 173 Strickland Crescent, Deacon ACT 2600
Please provide a description of the accident
Confinement for birth of son (name). Failure to properly treat & nervous shock causing birth injury, fetal lacerations to newborn infant (name).
3. The form also requests details of the injury alleged to have been suffered by the claimant. In response to that request, the first defendant provided the following details:
What are your injuries
Physical injury (full details will be provided - investigation is ongoing)
Psychiatric injury and psychological sequelae
The next question in the form was ‘Did the accident cause any aggravation to any pre-
existing conditions?’. The first defendant answered ‘Yes’. She specified the condition of
‘Anxiety’.
5. Under the heading ‘Claim against health service providers’, the form poses a number of specific questions. The first of these in the first defendant’s form was ‘…what is the
medical condition for which you sought treatment?’. The answer given was ‘Birth of child’.
6. The next relevant question is ‘What did the health service provider do or not do which caused the injury…?’. The answer provided to this question was ‘Failed to properly treat’.
7. In response to the question ‘Do you believe the health service provider failed to inform you of the risks involved in the treatment you undertook?’, the first defendant answered ‘Yes’. In the event of an affirmative answer, the claimant is then requested to ‘… provide details as to when you believe the information should have or could have been provided to you.’
There is also a request for information as to whether the health service provider provided any written or oral information or warning. No details were given in relation to the former, or the latter request for information.
8. In response to the question ‘Did you consent to the treatment given to you by the health service provider which has given rise to the injury? ’, the first defendant answered ‘Yes’ followed by ‘? whether informed consent’.
Correspondence between the parties
9. On 24 December 2019, the plaintiff ’s solicitor wrote to the solicitor for the defendants. In
the letter the plaintiff advised, pursuant to s 52 CLWA, that she was a proper respondent to the claim. However, the letter went on to state that the plaintiff did not regard the notices as complying with the requirements of the Act. Numbered paragraph 5 was in the following terms:
5. The statement of what it is alleged Dr Ahuja did or did not do which caused the injury is
stated as “failed to properly treat causing birth injuries”. This does not provide the degree
of particularity required to enable our client to properly investigate the claim and respond as required by section 61 of the Act. In the claim for Dylan it is alleged that the injury was
due to “improper procedures during childbirth – caesarean section”. Please advise if it is
alleged that the caesarean section should not have been performed or should have been
performed in a different way, and if so specify in what different way.
10. There was no response to this letter. In April 2020, the solicitors for the parties exchanged emails about medical records. There was a further exchange in June 2020 on the same
subject. Then, on 23 November 2020, the plaintiff ’s solicitor wrote to the defendants’
solicitor in the following terms:
We refer to your email dated 9 June 2020 advising that the above matters are proceeding, however you were awaiting some medical updates. Sufficient time has elapsed in our respectful submission for the necessary updates to have been obtained by now. As such if your clients do wish to proceed, please provide within 30 days, the following further information and documents:
1. All expert and medical reports in your clients’ possession relating to the claim;
2. All clinical and medical records relating to your clients;
3. Particulars of what part of the treatment provided by Dr Ahuja was below the standard of care expected of a reasonable obstetrician;
4. Particulars of how any alleged breach of a duty of care on the part of Dr Ahuja resulted in any injuries loss or damage to your clients.
This request is made pursuant to section 64 of the Civil Law (Wrongs) Act 2002. We look forward to receiving the necessary documents and information.
11. The solicitor for the defendants responded by letter on 30 November 2020. The specific responses to numbered paragraphs 3 and 4 of the 23 November 2020 letter were:
This is a matter for expert evidence. We will provide this information when it is to hand and in accordance with the Act.
12. On 22 March 2021, the plaintiff’s solicitor wrote to the defendants’ solicitor addressing the issues prescribed under s 61(1) of the CLWA. In that letter, the plaintiff’s solicitor stated:
It has been 16 months since the Personal Injury Claim notification was served, and despite two requests for further information and supportive reports in our letters referred to above, no further information or documentation has been provided.
The defendants’ solicitor replied by letter on 30 March 2021. In that letter she relevantly
stated:
In accordance with our letter dated 30 November 2020, we confirm that we are continuing to
investigate our clients’ claims. We will provide all expert and medical reports when they are to
hand and in accordance with the Civil Law (Wrongs) Act 2002.
14. On 8 July 2021, the plaintiff ’s solicitor returned to the subject of what exactly the plaintiff
was alleged to have done (or omitted to do) which amounted to a breach of her duty of care. It was pointed out that no details had been provided notwithstanding the previous requests over the prior 18 months. The letter continued:
In our submission the intent of the pre-court provisions of the Civil Law (Wrongs) Act 2002 is to provide an ef ficient and timely mechanism for the resolution of personal injuries claims, which by reference to section 61 of the Act, ought to occur within 6 months. While we appreciate that claims against medical practitioners may be more complex than the usual personal injury claim, and that some additional time may in some cases be required, taking more than two years to investigate a claim is inappropriate and unfair, both to the claimants and the respondent.
Accordingly we have received instructions to make an application pursuant to section 78 of the Act for orders compelling the provision of the requested information and reports. We will allow your clients a period of 21 days to provide the information and documents. If at the end of that period the material is still outstanding, we hold instructions to f ile an Originating Application. If that is necessary we will seek an order for your clients to pay the costs of the application.
15. By letter dated 13 July 2021, the defendants’ solicitor referred to the responses to
numbered paragraphs 3 and 4 as set out in her letter of 30 November 2020 (see para [11]
above) and went on to explain:As you will have seen f rom the records provided to you, Ms Chambeyron’s medical condition
has not yet stabilised. Ms Chambeyron continues to suffer f rom chronic pelvic pain associated with her caesarean scar and epidural site. Between February 2020 and May 2021, Ms Chambeyron presented to the Calvary Public Hospital approximately 14 times for treatment and assessment of her pain.
On 4 May 2021 Ms Chambeyron underwent a diagnostic Iaparoscopy, adhesiolysis and superf icial wound exploration in relation to her chronic pelvic pain. We are instructed by Ms Chambeyron that a review consultation is scheduled to take place on 25 August 2021.
As Ms Chambeyron’s condition has not yet established, we are not in a position to obtain expert
evidence which will allow us to provide to you the requested information and expert reports.
To obtain expert evidence prior to Ms Chambeyron’s condition stabilising would result in
unnecessary costs and delays to our clients as updated reports would need to be obtained once
Ms Chambeyron’s condition has stabilised (noting that the factual f indings relating to Ms Chambeyron are relevant to both (name of child) and Dylan’s claims). Incurring unnecessary
costs is contrary to the objective of the Act to reduce costs in litigation.
The plaintiff ’s solicitor took issue with that explanation. By letter that same day ( i.e. 13 July
2021), he stated:
3. Of the information requested the most significant request is for your clients to specify what it is alleged Dr Ahuja did, or did not do, which caused the injury. At the moment all that has
been provided is the statement in the PICN which alleges that Dr Ahuja “failed to properly
treat causing birth injuries”. This does not provide the degree of particularity req uired to
enable our client to properly investigate the claim. Your client should be able at this time to
specific how it is alleged Dr Ahuja failed to properly treat Ms Booth/Chambeyron;4. In the claim for Dylan it is alleged that the injury was due to “improper procedures during
childbirth – caesarean section”. Your client should be able to advise if it is alleged that the
caesarean section should not have been performed or should have been performed in a
dif ferent way, and if so specify in what different way;5. The information as to what it is alleged Dr Ahuja did or did not do, which a failure to properly treat will not change based on the ongoing pain, so there should be no need for an additional report later on the issue of liability;
6. It is not uncommon in personal injury claims for pain to be ongoing. Usually the cause of the pain is known. However even where the cause of the pain is unknown your client can still provide clarity on what it is alleged should or should not have occurred in the delivery of (name of child);
7. If an expert is unable at this point in time to attribute the pain to a lack of care in some respect, it seems unlikely further time will clarify that issue, and Ms Booth/Chambeyron needs to come to grips with that problem.
The letter went on to say that in the light of the first defendant’s review appointment on 25
August 2021, the plaintiff would give the defendants until 2 September 2021 to provide the requested particulars before making an application under s 78 of the CLWA.
18. On 6 September 2021, the defendants’ solicitor wrote to the plaintiff ’s solicitor in the
following terms:
We are of the view that our clients have complied with their obligations as set out in Part 5 of the Act. They have provided to you all information and documents which are in their possession. We conf irm that our clients do not at this time hold any further information regarding the particulars of the claim that you have requested, nor do we (or they) hold any expert reports.
Our clients are not able to provide documents that they do not have.
In continuing compliance with the requirements of the Act, we will provide you with the requested information and documents when they are to hand.
We understand that your client is frustrated that the requested information is yet to be provided. As explained previously, Ms Chambeyron has been undergoing further investigations /
treatment in relation to the symptoms she has suf fered since Dr Ahuja’s caesarean section
procedure. Your view that an application is required because “there is no indication that the
information we have requested will ever be provided” lacks foundation.
Orders sought
19. By Originating Application filed on 15 September 2021, the plaintiff seeks the following order:
1 that the defendants comply with section 64 of the Civil Law (Wrongs) Act 2002 by providing
to the plaintiff’s solicitors within 14 days from the date of the order, particulars of the claim
and any expert reports supporting the claim, as requested in a letter f rom Avant Law to
Commins Hendriks dated 24 December 2019.
20. The grounds for the application are stated as follows:
1 The defendants issued Personal Injury Claim Notifications (‘PICNs’), to the plaintiff in
November 2019;
2 The plaintiff by her solicitors Avant Law, requested, among other things, particulars of what
she did or did not do which caused the defendants’ alleged injuries on 24 December 2019;
3 The request for such particulars together with any expert reports in support was repeated on 9 June 2020, 23 November 2020, 22 March 2021 and 8 July 2021;
4 Pursuant to section 64(3) of the Civil Law (Wrongs) Act 2002 (ACT) the defendants were obliged to respond to the request within one month of the request;
5 Asserting a right to keep the claim on foot, but failing to provide the particulars and any expert reports in support is a breach of section 64 of the Act and also contrary to the apparent intention of Chapter 5 of the Act that claims be resolved in a timely way, and has an unnecessary and deleterious impact on the plaintiff.
The Plaintiff’s Submissions
21. Mr McCay, for the plaintiff, argued that it was implicit in the scheme of pre-court procedures imposed by the CLWA in relation to claims for damages arising from personal injury that claimants must be able to particularise the breach of duty relied upon. This was particularly so in relation to medical negligence claims, having regard to s 4(8)(b) of the Civil Law (Wrongs) Regulation 2003 (ACT) (the Regulation).
22. It was submitted for the plaintiff that the defendants had failed to provide any proper particularisation of the basis on which it was said that the plaintiff had breached her duty of care in the course of her treatment of the first defendant. This resulted in the plaintiff not being able to make a realistic assessment of the claims. It was contrary to the scheme of pre-court claim investigation, assessment and, hopefully, settlement introduced by Ch 5 of the CLWA. In that regard, reference was made to what Mossop AsJ (as his Honour was then) said in Van Kleef v Tran [2016] ACTSC 316 at [28] (Van Kleef). Reference was also made to the effect of delay on the quality of justice as discussed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
23. The plaintiff submitted that the Court should not accept the defendant’s argument that it was necessary to wait until the defendant’s condition had stabilised . While the stabilisation
might be relevant to quantum, it was not, however, necessary to determine if an
appropriate expert might be qualif ied to provide an opinion as to liability.
The Defendants’ Submissions
24. Ms Oldfield appeared for the defendants. She submitted that there was a distinction between what was required pursuant to s 4(8) of the Regulation and the content of the personal injury claim notice. Indeed, it is argued that the requirement under the Regulation
is expressed in ‘general terms’, so that the level of specificity required is less than that which would be required in the pleading of the defendan ts’ claim in court proceedings, and
less than that sought by the plaintiff.
25. The defendants say that they have not denied an obligation to particularise the alleged breach of duty on the part of the plaintiff. Rather, they say that because of the ongoing treatment of the first defendant it has been necessary to await the outcome of that treatment before qualifying an expert as to the issue of liability. This is due to the
uncertainty as to what has been causing the first defendant’s ongoing symptoms.
26. As to the service of expert reports, the defendants say that it is clear from the
correspondence between the parties that the defendants’ position has always been that
they will serve their reports in accordance with the requirements of the Act once they are
available.27. In relation to the decision in Van Kleef, the defendants say that the issue in that case was quite different from the circumstances of this case. Moreover, it is necessary to understand
what his Honour said at paragraph [28] in context. That context included his Honour’s
comment at paragraph [29].
28. The defendants do not yet have expert reports addressing the issue of liability. It would thus be a futile exercise to order the service of such reports within 14 days, as sought by the plaintiff.
The Plaintiff’s Submissions in Reply
29. Mr McCay noted that the evidence relied upon by the defendants did not support what he
characterised as an ‘assertion from the bar table’ as to the reason why they had not yet
obtained expert reports as to liability. It was put on behalf of the plaintiff that the Court should not accept such an assertion in the absence of evidence. It would be reasonable to expect a report from a medical expert explaining the necessity to await the completion of the treatment which the first defendant is receiving before being able to express an
opinion as to the issue of breach of the plaintiff’s duty of care.
Consideration
30. The relevant provisions of the CLWA appear in Ch 5. That Chapter is headed ‘Personal injuries claims – pre-court procedures’.
31. Section 49 sets out some definitions for the Chapter. Relevantly, ‘claim’ is widely defined:
claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim
for the dead person’s dependants or estate.
32. That the Chapter is intended to apply broadly to personal injury claims is emphasised by s 50. Subsection (1) provides:
(1) This chapter applies to all claims for damages for personal injury, including claims to which the Motor Accident Injuries Act 2019, chapter 5 (Motor accident injuries— common law damages) applies.
33. While subsections 50(2)-(4) provide for some limited exceptions to the operation of the
Chapter, they do not undermine the intent implicit in s 50(1), and the definition of ‘claim’ in
s 49.
34. Against that background, s 51(1) (which is contained in Part 5.2 of the Act) prevents a claimant from commencing a court proceeding for damages for personal injury before giving the proposed defendant written notice of the claim. Under s 51(2), the notice must contain the information required by regulation.
35. The relevant provisions of the Regulation require the provision of a significant amount of information. For current purposes I refer to the following parts of s 4:
(3) The following information about the accident claimed to have given rise to the
personal injury to which the claim relates is required:
(a) the date, time and place of the accident; (b) details of how the accident happened; (c) if appropriate, a diagram showing, to the best of the claimant’s knowledge, the scene of the accident;
(d) if known that the police, ambulance, fire and rescue service or any other emergency service attended the accident—
(i) that fact; and (ii) if known, the name of the service or services that attended the accident; and (iii) if known, the name and contact details of the person or people who attended the accident for the service; (e) if known, the name, address and telephone number of anyone who has given a witness statement; (f ) if known, the name, address and telephone number of the person or people (if any) who were, in the claimant’s opinion, responsible for causing the
accident (apart from the respondent);
(g) if a seatbelt or helmet was required under the Road Transport (Safety and Traffic Management) Act 1999—whether it was being worn as required when
the accident happened;
(4) The following information about the nature and treatment o f the injured person’s personal injury is required:
(a) a description of the injury suffered; (b) if the injured person was or is hospitalised for treatment of the injury—the name of the hospital;
(c) if the injured person received or is receiving medical treatment for the injury—
(i) the general nature of the treatment; and (ii) the name and address of the treatment provider or providers; and (iii) the date of the person’s first examination by a doctor.
(8) If the claim is against a health service provider, the following information is also
required:
(a)
a description of the medical condition for which the injured person sought treatment;
(b)
the act or omission claimed to have given rise to the personal injury or to have exacerbated a pre-existing injury or condition;
(c)
if the claim relates to or includes a claimed failure of the health service provider to adequately inform the injured person of the risks involved in the treatment
sought—
(i) the date, time and place of each consultation with the health service provider at which information about the risks could have been given; and
(ii) if any written or oral information or warning was given to the injured person by
the health service provider about the treatment—
(A) the date and place the information or warning was given; and (B) details of the information or warning including what the injured person was
informed or warned about;
(d) if written or oral consent was given by the injured person to the health service provider about the treatment claimed to have given rise to the personal injury—the date and place the consent was given.
36. The time in which a notice must be given is limited. Section 51(3) of the CLWA provides:
(3) For a proceeding not based on a motor accident claim or child abuse claim, the notice must be given within the period that ends on the earlier of the following days:
(a) the day that is 9 months after— (i) the day the accident giving rise to the personal injury happened; or
(ii) if symptoms of the injury are not immediately apparent—the day symptoms of
the injury first appear;
(b) the day that is 4 months after the later of the following days:
(i) the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury; (ii) the day the respondent is identified.
37. It is also necessary to refer to s 51(6). It is in these terms:
(7) If the notice is not given within the period required under subsection (3), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.
38. Section 52 imposes an obligation on a respondent to a claim to give the claimant notice pursuant to s 54, advising whether the respondent is properly respondent to the claim, and whether the respondent considers the claim to comply with the requirements of the Act and Regulation. The time period for the response of the plaintiff here was one month
after the service of the defendants’ notices of claim. The respondent complied with that
requirement – see the letter of 24 December 2019 (para [7] above).39. The consequences of a plaintiff failing to give a complying notice of claim are potentially severe. Section 59 provides:
(1) If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless—
(a) the respondent to whom notice of the claim was purportedly given— (i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or
(ii) is presumed, under section 54 (3) (Respondent’s response to notice of claim),
to be satisfied the notice is a complying notice of claim; or
(b) the respondent has waived any noncompliance; or (c) the court, on application by the claimant—
(i) declares that the claimant has remedied the noncompliance; or (ii)
authorises the claimant to proceed further with the claim despite the noncompliance.
(2) An order of the court under subsection (1) (c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.
40. As Master Harper pointed out in Al-Rawahi v Niazi [2006] ACTSC 84; 203 FLR 94 at [5], this section could lead to an order staying any action commenced by a claimant until he or she had rectif ied the relevant failure to comply with the notice obligations under s 51.
41. Section 61 is important to the assessment of the purpose of the procedures imposed in Part 5.2. It provides:
(1) A respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 6 months after the day the respondent receives a complying notice of claim)—
(a) take any reasonable steps necessary to f ind out about the accident claimed to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating— (i) whether liability is admitted or denied; and
(ii) if contributory negligence is claimed—the degree of the contributory negligence
expressed as a percentage; and
(c) if the claimant made an of fer of settlement in the notice of claim—tell the claimant whether the respondent accepts or rejects the offer; and
(d) if the claimant did not make an offer of settlement in the notice of claim—invite the claimant to make a written offer of settlement; and
(e)
make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and
(f ) either—
(i)
make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made; or
(ii) settle the claim by accepting an offer made by the claimant.
(2) If a notice of claim is not a complying notice of claim, a respondent is taken to have been given a complying notice of claim when—
(a)
the respondent gives the claimant written notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or
(b) the court makes a declaration that the claimant has remedied the noncompliance, or authorises the claimant to proceed further with the claim
despite the noncompliance.
(3) An of fer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession or control that may help the person to whom the offer is made make a
proper assessment of the offer.(4) A respondent or claimant to whom a written offer, or counteroffer, of settlement is made must, unless a response to the offer is to be made under subsection (1) (c), respond in writing to the offer within the period prescribed by regulation af ter the day the respondent or claimant receives it (or, if no period is prescribed, within 3 months), indicating acceptance or rejection of the offer. (5) An admission of liability by a respondent under this section—
(a) is not binding on the respondent in relation to any other claim; and (b) is not binding on the respondent at all if it later appears the admission was induced by fraud.
42. Part 5.3 is headed ‘Obligations of parties to give documents and information ’. Section 63
states the purpose of the part in the following terms:
The purpose of this part is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.
43. Section 64 relevantly sets out the obligations imposed on a claimant as follows:
(1) A claimant must give a respondent—
(a) copies of the following in the claimant’s possession: (i) reports and other documents about the accident claimed to have given rise to the personal injury to which the claim relates;
(ii) reports or surveillance film about the claimant’s medical condition or prospects
of rehabilitation;
(iii) reports or surveillance film about the claimant’s cognitive, functional or
vocational capacity; and
(b) information reasonably requested by the respondent about any of the following:
(i) the accident; (ii) the nature of the personal injury and of any consequent disabilities; (iii) if applicable, the medical treatment and rehabilitation services the claimant has sought or obtained; (iv) the claimant’s medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant;
(v) the claimant’s claim for past and future economic loss;
(vi) any claim known to the claimant for gratuitous services consequent on the
claimant’s personal injury.
44. Section 68 sets out corresponding obligations imposed on a respondent to provide a claimant with documents and/or information.
45. Part 5.4 is headed ‘Other provisions – pre-court procedures’. Relevant for current
purposes is s 78. It provides:
(1) If a party (the first party) fails to comply with a duty imposed under part 5.2 or part 5.3, the court may, on the application of a party to whom the duty is owed, order the f irst party to take stated action to remedy the noncompliance within a time stated by the court. (2) The court may make consequential or ancillary orders, including orders about
costs.
46. The essence of the dispute here is whether the defendants are in breach of the obligations imposed on them by Ch 5 of the Act. The issue which became the focus of the argument before me is the particularisation of the alleged breach of the duty of care owed by the plaintiff. While it is true, as submitted by Ms Oldfield, that the obligation under the Act is not to provide such particulars as might be expected in a Statement of Claim, it does seem to me that a claimant must provide sufficient particulars to inform the respondent of the nature of the case which is asserted by the claimant.
47. In the Van Kleef case Mossop AsJ said:
28. Counsel for the defendant submitted that by reason of the non-compliance with the statutory obligations the defendant had suffered irreparable prejudice because he had been denied the opportunity to resolve the claim prior to the commencement of proceedings. While I accept that the purpose of the pt 5.3 of the CLW Act is to put parties in a position where they have enough information to assess liability and quantum in relation to a claim and hence the denial of access to the report may have af fected the position of the defendant, there is no evidence that it did.
29. Further the obligation of the plaintiff was to serve such material as the plaintiff had, there was no positive obligation to provide medical reports at this early stage of the claim.
48. In that case, his Honour was dealing with an application by a plaintiff for leave to rely, at the hearing of the matter, on a medical report which had been obtained before the commencement of the proceeding. The report had not been served on the defendant as required by s 64 of the Act. It was in that context that his Honour made the comment at [29] of his judgment. I do not understand his Honour to have been there stating a principle of general application. For the reasons which follow it seems to me that the CLWA and Regulation may, in some circumstances, implicitly oblige a claimant to obtain one or more expert medical reports for the purposes of the claim process.
49. In Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71, Katzmann J (Burns J and Nield AJ agreeing) said:
49. The Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT), which inserted ch 5 into the Act, indicates that the requirement for early notification to defendants
of a client’s instruction to proceed with a claim was modelled on the Personal Injuries
Proceedings Act 2002 (Qld) (“PIPA”). Indeed, a comparison of ch 5 of the Wrongs Act with
the PIPA leads irresistibly to the conclusion that the debt to Queensland was much greater. Of the comparable provisions of that legislation Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted in Watkins v State of Queensland [2008] 1 Qd R 564 (at [67]):
The purpose of div 1 to div 4 of pt 1 of ch 2 of the PIPA is to ensure that sound claims are admitted and unsound claims are abandoned; in this way, unnecessary litigation of
those claims is to be avoided. … The evident purpose of these provisions of the PIPA
inevitably inform the actions of those who act in conformity with their requirements. That purpose is to ensure that good claims are paid and bad claims are abandoned before
proceedings are commenced in court; that is to say, the “dominant” purpose is that
there should not be litigation of the claim at all if that is reasonably possible.
(Emphasis added.)
50. Somewhat surprisingly, the specific issue raised in this matter does not seem to have arisen in this Court before now. Neither of the parties was able to refer me to an authority directly on point. Nor have I been able to find such authority in my own research (having regard to the reference to the Queensland legislation picked up in the extract from Cleary v Rinaudo, I have looked at decisions under the PIPA of that State. However, the text of the relevant provisions is slightly different from that of Ch 5 of the CLWA and as a result the decisions under that Act were not of specific assistance here. The particular issue which has arisen has been avoided in Queensland by s 9A(9) of the PIPA which requires a claimant in a medical negligence claim to provide an expert medical report as to liability and the causation of injury at the time of giving the notice of claim).
51. It is apparent from the scheme imposed under Ch 5 that the purpose of that scheme was to require the relevant parties to take every step necessary to enable a genu ine attempt at settling a claim before the commencement of court proceedings. The Chapter applies to a wide range of potential claims. In many (straightforward minor motor accidents, for example), a claimant may be able to provide a respondent with all the information it needs to properly assess the claim without the need to obtain any expert medical reports .
52. However, that is unlikely to be the situation in a claim of medical negligence. While it is possible to conceive of a case where the breach of duty of care was so obvious that an expert report on liability might not be required, most medical negligence claims require expert opinion informed by a close analysis of the facts and relevant medical records. It may well be that it is simply not possible for a claimant to particularise the breach of duty to be asserted against the relevant respondent until that opinion has been obtained.
53. In that sense, there is a clear tension between the practicalities of the situation and the text of s 51 picking up, as it does, s 4(8) of the Regulation. Having regard to the purpose of Ch 5, and the clear text of s 4(8)(b), I am satisfied that the combination of these provisions does impose upon a claimant the obligation to provide meaningful particulars of the act or omissions of the respondent said to constitute the breach of the relevant duty of care. The particulars must be sufficient to enable the respondent to understand and assess the prospect that the claimant might succeed in establishing liability in the event of legal proceedings being undertaken. That obligation has not yet been met by the defendants here.
In circumstances where a claimant’s medical condition might be quite complex , it may well
be the case that although the claimant’s solicitor considered that there was a reasonable
prospect that there had been a breach of the duty of care on the part of a treating doctor, it was simply not possible to obtain an opinion from an appropriate expert as to how the duty was breached in the period of four months allowed under s 51(3). Thus, it may take longer than that period just to obtain all of the relevant medical records. Or, as was said by Ms Oldfield to be the case here, the claimant may be undergoing a series of investigations to establish the precise cause of his/her ongoing complaints. There is a range of possible circumstances which either alone, or in combination, might make it impossible to comply with the obligation imposed by the legislation within the allowed time.
55. In such a situation, the lawyers advising the claimant would have a diff icult choice. Do they advise the claimant to give the respondent a notice of claim which, in the circumstances, must be non-complying? Or do they advise the claimant to wait before giving notice, and to trust that the excuse for not giving notice of a claim in the allowed time is accepted either by the respondent, or if necessary, by a court as being reasonable?
56. It might well be that the safer course is that which was adopted here. That is, the notice of claim is given with the intent that the information necessary to render it a complying notice will be given at a later time.
57. That of course begs the question, by what time should the information be given? The matter was brought to a head fairly quickly here by the request for information made by
the plaintiff ’s solicitor on 24 December 2019. The response from the defendants’ sol icitor
nearly six months later, in my view, avoided engaging with the requests made by the
plaintiff ’s solicitor. The statement that they were ‘awaiting some medical updates’ provided
no useful information at all having regard to the requests made by the p laintiff.
The next letter from the plaintiff’s solicitor, on 23 November 2020, elevated the request for
information as to the breach of duty of care asserted against the plaintiff to the formality of one made under s 64 of the Act. Pursuant to s 64(3), the defendants were required to respond within one month. I should say at this point that in the context of s 4(8)(b) of the Regulation, I regard the request for particulars of the breach as a reasonable one (having regard to the terms of s 64(1)(b)).
59. It was not until the 30 November 2020 letter (see [11] above) that the defendants’ solicitor
acknowledged that it was necessary for the defendants to have the benefit of expert opinion in order to formulate the particulars of negligence alleged against the plaint iff. It is notable that no estimation was given in the letter as to when that opinion might be obtained. Nor was any explanation given for the delay in obtaining it. I do not regard this as an adequate response for the purposes of s 64(3). It seems to me that the section requires either the provision of the information sought, or some reasonable explanation of why that information is not available together with an indication of when it will be available.
60. It is not surprising that, in the light of the correspondence, the plaintiff ’s solicitor should
make the complaints, and give the warning, contained in his 8 July 2021 letter (see [14] above). The circumstances were such that by that time, in order to avoid the risk of enforcement action under s 78, it was incumbent on the defendants to either provide the information necessary to comply with their obligations under Ch 5, or at the least, provide the explanation and indication referred to in paragraph [59] above. I note, in that context, the limitation period for the commencement of proceedings by the defendants was probably three years from June 2019 (see s 16B of the Limitation Act 1985 (ACT)). In that circumstance, it may have been advisable for the defendants to have obtained a short report from the expert medical witness who was going to advise them on the issue of liability which explained the necessity to await whatever investigations were outstanding.
61. The explanation contained in the defendants’ solicitor’s letter of 13 July 2021 (see [15]
above) was, unfortunately, not to the point. It may be that the author of the letter had in
mind the need for the precise cause of the first defendant’s complaints to be deter mined
to allow the medical expert to analyse the standard of care exercised by the plaintiff by reference to that particular condition; however, that is not what the letter says. The delay in stabilisation of an injury might well be relevant to the quantif ication of a personal injury claim. It is diff icult to see how, by itself, it could be relevant to the assessment of liability.
62. At any rate, the plaintiff was content to allow the defendants until 2 September 2021 by which to provide the information sought, together with any supporting reports. The
information was not provided. The defendants’ solicitor, in the 6 September 2021 letter
(see [18] above) maintained that the defendants had complied with their obligations under the Act. It is said that the defendants have provided all of the information and documents
‘in their possession’.
63. As should be clear from what I have said above, I do not accept that Ch 5 permits the conduct of a claim in relation to medical negligence (or indeed any cause of action) in the way in which the defendants have conducted the subject claims. While it might accord with the overall purpose of the scheme to allow a reasonable time for a claimant to obtain the information and report(s) necessary to formulate the claim on liability, in my view, in the circumstances of this case, the defendants have gone well beyond that limit. As a consequence, they have been, and remain non-compliant with the obligations imposed on them by ss 51 and 64 of the CWLA.
64. I should say that there is some force in the submission made by Mr McCay as to the inadequacy of the evidence in relation to the explanation for the delay in the obtaining of relevant expert reporting as to liability. While it is possible to draw an inference from the circumstances and the content of the correspondence between the parties this can only take the matter so far. In my view, if a claimant wishes to persuade a court that he or she has taken all reasonable steps to comply with the obligations imposed by Ch 5 in circumstances such as these, it would be highly desirable, if not necessary, for there to be some evidence available from the relevant expert(s) along the lines of that referred to at the end of paragraph [60] above.
65. The finding that the defendants have failed to comply with the duties imposed under ss 51 and 64 enlivens the discretion granted under s 78. I am satisfied that it is appropriate for an order to be made requiring the defendants to remedy their non-compliance. I have
reached this conclusion having regard to the overall conduct of the defendants’ claims,
and the passage of nearly two years since the notices of claim were given to the plaintiff. In my view, the failure of the defendants to provide the requested information has frustrated the purpose for which Ch 5 was introduced. It has made it impossible for the plaintiff and those advising him to comply with the obligations imposed under s 61 of the Act. That section is plainly designed to encourage the settlement of the claim, avoiding the need for court proceedings.
The evidence on which the defendants relied indicated that the defendants are ‘in the
process’ of obtaining the expert opinions which they require. Ms Oldfield was unable to be
precise as to when these would be available, although she expected that it might take
eight weeks or so.67. There seems little point, therefore, in making an order requiring the defendants to provide the necessary information within 14 days, as sought in the Originating Application.
Conclusion
68. Having regard to the circumstances of this matter, I am satisfied that I should make an order requiring the defendants to provide the information sought by the plaintiff in the letter from her solicitor dated 24 December 2019, and in particular, the details of the acts and/or
omissions said to have constituted the breach of the plaintiff ’s duty of care. There is no
suggestion that the defendants have, in breach of ss 64(1)(a) and (2), failed to serve reports which have come into their possession. In the circumstances, I see no need to make an order requiring the service of expert reports.
69. I propose to allow the defendants two months from the date of the order in which to provide the relevant information.
70. On the basis of the evidence before me, I propose to order that costs follow the event. I will however suspend the operation of that order for a short period to permit the parties to make any submissions they may wish in relation to costs.
Orders
71. The orders of the court are:
(1)
On or before 10 December 2021 the defendants provide Avant Law, solicitor for the plaintiff, with the information requested in numbered paragraphs 1-5 of the letter from
Avant Law to the defendants’ solicitor Ms H Ross dated 24 December 2019.
(2) Subject to order (3), the defendants pay the plaintiff ’s costs of this proceeding. (3) In the event that either party notif ies my associate in writing that he or she seeks an order different from that in (2) by 4.00 pm on 22 October 2021, order (2) shall be suspended until further order. I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.
Associate: Alexander Arnott
Date: 15 October 2021
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