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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahuja v Chambeyron

Details

AGLC: Ahuja v Chambeyron [2021] ACTSC 267
Case: [2021] ACTSC 267
Decision Date

CaseChat Overview and Summary

In the matter of Ahuja v Chambeyron, the Supreme Court of the Australian Capital Territory was tasked with determining whether the defendants were in breach of the obligations imposed by the Civil Law (Wrongs) Act 2002 (ACT) in relation to providing particulars of the alleged breach of duty of care by the plaintiff. The court found that the defendants had failed to comply with their obligations under sections 51 and 64 of the Act, leading to the plaintiff being unable to properly assess the claims and comply with the obligations imposed by section 61 of the Act. The court ordered the defendants to provide the requested information within two months of the date of the order and suspended the order for payment of costs to permit the parties to make any submissions they may wish in relation to costs.

The court's decision was based on its interpretation of the relevant provisions of the Civil Law (Wrongs) Act 2002 (ACT) and the Civil Law (Wrongs) Regulation 2003 (ACT), as well as the purpose of the pre-court procedures imposed by Chapter 5 of the Act. The court held 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.

The court found that the defendants had gone well beyond the limit of the reasonable time allowed for a claimant to obtain the information and report(s) necessary to formulate the claim on liability, and had therefore been, and remained non-compliant with the obligations imposed on them by sections 51 and 64 of the CWLA. The court held that it was appropriate for an order to be made requiring the defendants to remedy their non-compliance, and made 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.

Orders