Belovic v Calvary Healthcare Act Limited
[2023] ACTSC 90
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Belovic v Calvary Healthcare ACT Limited |
Citation: | [2023] ACTSC 90 |
Hearing Date: | 21 April 2023 |
DecisionDate: | 21 April 2023 |
Before: | McCallum CJ |
Decision: | (1) Pursuant to s 59(1)(c)(ii) of the Civil Law (Wrongs) Act 2002 (ACT), the plaintiff is authorised to proceed with the Originating Claim dated 13 December 2022. (2) Costs be costs in the cause. (3) Confirm the listing in the Registrar’s Directions List at 9:30am on 24 April 2023. |
Catchwords: | CIVIL LAW – INTERLOCUTORY APPLICATION – Application to remedy non-compliance – application to proceed with Originating Claim despite non-compliance – medical negligence claim – whether the notice of claim complied with temporal requirements – whether delay adequately explained – where notice of claim was adequately particularised – whether the Court should authorise the claimant to proceed with the claim – where proceedings have urgency |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ch 5; ss 51, 59 |
Cases Cited: | Ahuja v Chambeyron [2021] ACTSC 267 Jaiswal v Jamieson [2022] ACTSC 278 |
Parties: | Felicks Belovic (Plaintiff) Calvary Healthcare ACT Limited ( Defendant) |
Representation: | Counsel D Richards ( Plaintiff) A Arnott ( Defendant) |
| Solicitors United Legal ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 491 of 2022 |
McCALLUM CJ:
Felicks Belovic, a gentleman aged 83 years, claims compensation for injuries he alleges occurred during cataract surgery at Calvary Public Hospital on 10 June 2020. Any claim for compensation for injuries of that kind is governed in this jurisdiction by the Civil Law (Wrongs) Act 2002 (ACT). Chapter 5 of the Act prescribes pre-court procedures required to be adopted by the claimant and respondent respectively.
The clear purpose of that Chapter is to streamline and simplify the processing of claims for compensation, to reduce the involvement of lawyers and ultimately to minimise the need to commence legal proceedings. Section 51 of the Act provides:
51 Notice of claim
(1) Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.
Note 1 A proceeding must be brought before the end of the relevant limitation period (if any) under the Limitation Act 1985.
Note 2 The Limitation Act 1985 does not apply a limitation period to child abuse claims (see that Act, s 21C).
Note 3 If a form is approved under s 222 for a notice of claim, the form must be used.
(2) The notice must—
(a) contain a statement of the information required by regulation; and
(b) authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation:
(i) the respondent;
(ii) if the respondent is insured against the claim—the respondent’s insurer for the claim; and
(c) be accompanied by the documents required by regulation.
(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.
(4) For a proceeding based on a motor accident claim, the notice must be given within 3 months after the latest of the following days:
(a) if the claimant is taken, under the Motor Accident Injuries Act 2019, section 133 (WPI taken to be 10% in certain circumstances), to have a WPI of 10% as a result of the motor accident—the day the claimant receives information under the Motor Accident Injuries Act 2019 stating that the claimant is taken to have a WPI of 10%;
(b) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 141 (5) (WPI assessment 4 years 6 months after motor accident)—the date that is 26 weeks after the date of the notice;
(c) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 157 (2) (WPI 10% or more—injured person entitled to make motor accident claim)—the due date stated in the notice;
(d) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 164 (2) (Final offer WPI 10% or more—injured person entitled to make motor accident claim)—the due date stated in the notice;
(e) if the claimant applies to the ACAT for review of a final offer WPI decision under the Motor Accident Injuries Act 2019, section 162 (1) (Final offer WPI 5% to 9%), section 163 (1) (Final offer WPI 10% or more—injured person not entitled to make motor accident claim) or section 164 (1) and the ACAT makes an order under that Act, section 197 (External review—decision) to the effect that the claimant has a WPI of at least 10% and is entitled to make a motor accident claim—
(i) if no appeal from the order is made—the date the appeal period for the order ends; or
(ii) if an appeal from the order is made—the date the appeal is finally decided;
(f) if the claimant receives a notice under the Motor Accident Injuries Act 2019, section 213 (4) (SOI report—injury has significant occupational impact) stating that the claimant is taken to have a WPI of 10% for this Act—the date of the notice;
(g) if the claimant applies to the ACAT for review of an SOI report under the Motor Accident Injuries Act 2019, section 214 (SOI report—no significant occupational impact) and the ACAT makes an order under that Act, section 218 (1) (b) (ACAT review—decision)—
(i) if no appeal from the order is made—the date the appeal period for the order ends; or
(ii) if an appeal from the order is made—the date the appeal is finally decided.
Note This chapter does not apply to a claim for which a notice has been given by or for the claimant under the Limitation Act 1985, s 30A (2) (see s 50).
(5) For a proceeding based on a child abuse claim, the notice must be given within a reasonable time before the claimant brings the proceeding against the respondent.
Note If the notice is not given as required under s (5), the obligation to give the notice continues until it is given (see Legislation Act, s 152).
(6)If the claimant is a child, the claimant’s parent or legal guardian may give the notice for the claimant.
Note For another procedure for a claim in relation to a personal injury suffered by a child, see the Limitation Act 1985, s 30A (Special provision for injuries to children).
(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.
Note If the notice is not given as required under s (3), the obligation to give the notice continues until it is given (see Legislation Act, s 152).
(8) Without limiting subsection (7), an excuse is reasonable if it is prescribed by regulation for this section.
(9) If the respondent knows of anyone else (a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives the notice)—
(a) give a copy of the notice to each relevant person; and
(b) tell the claimant in writing about each relevant person and give the claimant a short written statement explaining why each of them may be a relevant person.
(10) If the respondent is a child, the respondent’s parent or legal guardian may comply with subsection (9) for the respondent.
The language of s 51(3) is difficult. In terms it appears to provide that, on any view, notice must be given within nine months of the day the accident giving rise to the personal injury happened. That is because of the prefatory words “within the period that ends on the earlier of the following days”.
On that construction, however, it is not clear what work is to be done by the other three possible timeframes within which notice must be given, namely, within nine months of the day symptoms of the injury first appear in a case where those symptoms are not immediately apparent, within four months after the later of the day on which the claimant first instructs a lawyer or within four months of the day on which the respondent is identified.
Acknowledging that difficulty, Mr Richards, appearing for Mr Belovic on the present application, submitted that the section means that a person who engages a lawyer must give notice within the later of the two periods to which I have referred. In any event, there is a dispute in the present proceedings as to whether compliant notice was given and that is the subject of the application before the Court today.
As already indicated, Mr Belovic's surgery took place on 10 June 2020. During the process of anaesthesia to the right eye it appears the exterior globe was pierced by the anaesthetic needle. However, Mr Belovic contends that he was not in a position to bring a claim based on that allegation until he came into possession of a report of the expert opinion of Professor Ross MacPherson dated 11 July 2022.
He gave notice of a claim initially to a wrongly-named party within four months of that date. The incorrect naming of the defendant was rectified and no ongoing issue is taken on that account. However, the correct defendant, Calvary Healthcare ACT Limited, has responded to the claim by saying that the notice is not compliant because it was not given within the time allowed by s 51(3) and that no reasonable explanation has been provided for the lateness. It is relevant to note in that context that s 51(7) provides 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.
The notice given to the respondent gave an excuse, namely “because up until receipt of Professor MacPherson's report and our subsequent meeting with our client, we were unsure that a claim existed”.
The parties accordingly reached a stalemate. Mr Belovic contended that a reasonable excuse was given in the notice itself. The defendant disputed that.
Mr Belovic commenced proceedings by originating claim filed 13 December 2022. He now moves the Court by application in proceeding dated 24 March 2023 for the following relief:
1.A declaration that the plaintiff has been compliant with the requirements under Chapter 5 of the Civil Law (Wrongs) Act 2006 [sic].
2.In the alternative, a declaration that the plaintiff has remedied the noncompliance under Chapter 5 of the Civil Law (Wrongs) Act 2006 [sic].
3. In the further alternative, the plaintiff be given leave to proceed with the Originating Claim filed 13 December 2022 despite noncompliance with Chapter 5 of the Civil Law (Wrongs) Act 2006 [sic].
As already noted, the language of the section which specifies the period within which a notice of a claim must be given is difficult. Mr Richards drew the Court’s attention to two decisions, also claims for medical negligence, which illustrate the problem.
The first is the decision of Crowe AJ in Ahuja v Chambeyron [2021] ACTSC 267. That was a case in which the plaintiff claimed damages resulting from harm allegedly caused to her child during childbirth. Notice was given within the four-month period. However, the difficulty was that the particulars of the claim were not known by the plaintiff at that time, or indeed for some time thereafter. The application determined by Crowe AJ indeed was an application by the proposed respondent to the claim, the doctor, pressing for the further information to which they were entitled under the rules supporting chapter 5 of the Civil Law (Wrongs) Act.
In the context of discussion of that issue, Crowe AJ said at [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 genuine 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.
After noting that there would be a range of possible circumstances which might make it impossible to comply with the obligations imposed by the legislation within the allowed time, his Honour proceeded to observe at [55]:
In such a situation, the lawyers advising the claimant would have a difficult 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?
In both Ahuja and the next decision provided to me by Mr Richards, the parties chose the former course and that was the source of dispute. The second decision was the matter of Jaiswal v Jamieson [2022] ACTSC 278, a decision of McWilliam AsJ. The issue raised there, again by the proposed respondent to a claim for damages for medical negligence, was whether the claimant had complied with the requirements of the statutory framework. McWilliam AsJ at [32] cited the observations of Crowe AJ to which I have referred and, importantly, evidently accepted the premise of his Honour’s decision that there will be cases in which it is simply not possible for a claimant to comply with s 51 owing to the need to obtain expert opinion evidence before determining whether there is a claim and, if so, against whom.
The claimant in the present case has taken the second of the two unhappy alternatives posited by Crowe AJ in Ahuja at [55], namely, rather than giving notice of a claim before he was capable of complying with its requirements, he waited until he had the expert opinion report of Professor McPherson and then gave notice in the hope that the excuse would be accepted by the proposed respondent as reasonable. As already indicated, it was not. It is in those circumstances that Mr Belovic seeks the relief set out above.
The first relief sought is a declaration that the plaintiff has been compliant with the requirements under chapter 5 of the Civil Law (Wrongs) Act. I do not think he has. The difficulty, as I have explained, is that the Act imposes temporal restrictions which, in some cases, simply cannot be complied with and they were not in this case.
The alternative relief sought is a declaration that the plaintiff has remedied the non‑compliance. In order to assess that claim it is necessary to consider the detail of s 51. As already noted, the section contemplates the provision of a reasonable excuse for delay in circumstances where the notice has not been given within the period required under subsection 51(3).
What is less clear is whether the giving of a reasonable excuse renders a non-compliant notice compliant or whether, rather, it enlivens alternative remedies. In the short time I have taken to consider this application, which I regard to be urgent for reasons to which I will come, I have (perhaps tentatively) concluded that the proper construction is the latter. That is, that if a notice is not given within time, the claimant can provide a reasonable excuse and that may result in a number of courses, including that the proposed respondent can accept the excuse as reasonable. It does not, however, have the effect of deeming the notice to have been given in time.
In circumstances where, as here, the respondent does not accept the reasonableness of the excuse, the claimant’s remedy is to go to Court and seek authorisation to proceed with the claim under s 59(1)(c) of the Civil Law (Wrongs) Act. Section 59 relevantly provides:
59 Claimant’s failure to give complying notice of claim
(1) If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless—
…
(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.
Subsection 59(1)(c)(i) seems to me to be addressed to the circumstances where the non-compliance concerns the inadequate provision of information. The requirements of s 51, and the balance of chapter 5, include extensive obligations to provide information and those are capable of being remedied.
For the reasons I have explained, I am less confident that failure to serve a notice within the time allowed by s 51(3) is something that is capable of being remedied as opposed to being forgiven, waived or authorised by the Court, as contemplated under s 59(1)(c)(ii). Accordingly, in my view, the real issue raised by the present application is whether the Court should authorise the claimant to proceed further with the claim despite the non-compliance. I have concluded that I should give that authorisation.
As already noted, the plaintiff is aged 83. That is a factor which, in my view, gives the proceedings a measure of urgency. There is no evidence before the Court as to his state of health but at that age longevity is not something that can be taken for granted. The claim should be dealt with and determined as expeditiously as possible.
Further, the circumstances of the alleged negligence are within a relatively narrow compass. There does not appear from the material before me to be any doubt that the globe of the claimant’s right eye was pierced during the course of the surgery. Dr MacPherson explains what in his opinion went wrong:
When performing the infero-temporal block, it is critical that the needle is directed slightly downwards after entry, thus avoiding contact with the globe of the eye. It would seem from the injury sustained by Mr Belovic (an inferior globe perforation) that during the performance of this injection, the needle did indeed come in contact with and perforate the globe of the eye.
There is nothing in the circumstances so far as they are revealed in the material before me to suggest that there could conceivably be any contention of contributory negligence. Nor does it appear that there is likely to be any other party joined by either the plaintiff or the defendant as a party responsible for any part of that damage. It is a straightforward medical negligence claim against a single practitioner arising from a single, short and allegedly negligent act.
For those reasons, I order that:
(1)Pursuant to s 59(1)(c)(ii) of the Civil Law (Wrongs) Act 2002 (ACT), the plaintiff is authorised to proceed with the Originating Claim dated 13 December 2022.
Mr Richards submitted that if the Court came to the view that the original notice of claim was compliant then the plaintiff would have his costs, but that if the Court reached the conclusion or a conclusion to the effect of that I have reached, the costs should be costs in the cause.
I therefore further order:
(2)The costs be costs in the cause.
(3)Confirm the listing in the Registrar’s Directions List at 9:30am on 24 April 2023.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 17 July 2023 |
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