Hayer v Kam - [2014] NSWSC 126

Supreme Court

New South Wales

Medium Neutral Citation: Hayer v Kam & Ors [2014] NSWSC 126
Hearing dates: 19 February 2014
Decision date: 27 February 2014
Jurisdiction: Civil
Before: Hoeben CJ at CL
Decision:
Dismiss the Seventh Defendant's application to strike out the Plaintiffs' intentional tort claim against it.
(1) In matter No 2010/214031 - the Estate of the Late Kulbir Singh Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013, such costs to be paid on an indemnity basis regardless of the outcome of the proceedings.
(2) In matter No 2012/034063 - Gurlean Hayer is to pay the defendants' costs thrown away by the matter not being a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(3) Pavitar Sunner is to pay to the defendants the costs which the plaintiff, Gurlean Hayer is ordered to pay.
(4) In matter No 2012/034047 - Dilpreet Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(5) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Dilpreet Hayer is ordered to pay.
(6) In matter No 2012/168689 - Sahibjot Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(7) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Sahibjot Hayer is ordered to pay.
(8) In relation to each Statement of Claim, the plaintiffs are to pay the costs of the defendants of and incidental to the Notices of Motion up to and including 17 January 2014 (being the day on which proper particulars were first provided).
(9) In respect of the costs of the infant plaintiffs, their tutor Pavitar Sunner is to pay the costs which they are ordered to pay.
(10) The seventh defendant is to pay the plaintiffs' costs of 19 February 2014.

Catchwords: PRACTICE AND PROCEDURE - claim in tort arising from death of patient in a hospital - claims in negligence and for intentional torts against medical practitioners and hospital staff - application to strike out intentional tort claims - whether s3B(1)(a) of the Civil Liability Act 2002 applied to intentional tort claims - strike out application refused - costs.
Legislation Cited: Civil Liability Act 2002 - s3B
Civil Procedure Act, 2005 (NSW) - s67
Legal Profession Act 2004 (NSW) - s347
Cases Cited: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256
Dean v Phung [2012] NSWCA 223
Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69;…

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 Hayer v Kam

Details

AGLC: Hayer v Kam [2014] NSWSC 126
Case: [2014] NSWSC 126
Decision Date: 27 February 2014

CaseChat Overview and Summary

Hayer v Kam was a case brought in the Supreme Court of New South Wales involving a claim in tort arising from the death of a patient at a hospital. The plaintiff, Hayer, sought damages from the defendant, Kam, a medical practitioner, and other hospital staff for claims in negligence and intentional torts. The defendants applied to strike out the intentional tort claims, arguing that they were barred by section 3B(1)(a) of the Civil Liability Act 2002. This section provides that a person is not liable for damage caused by a failure to take measures to prevent another person from intentionally causing harm to a third party.

The court was required to determine whether section 3B(1)(a) of the Civil Liability Act 2002 applied to intentional tort claims. The court held that the section only applied to claims in negligence and not to intentional tort claims. The court found that the defendants' application to strike out the intentional tort claims was therefore refused. The court also awarded costs to the plaintiff in relation to the application.

The court's decision in Hayer v Kam is an important reminder that section 3B(1)(a) of the Civil Liability Act 2002 does not apply to intentional tort claims. The court's decision also highlights the importance of carefully considering the scope of the statutory provisions in determining the validity of a claim. The court's refusal to strike out the intentional tort claims and the award of costs to the plaintiff demonstrates the court's willingness to protect plaintiffs' rights to pursue valid claims.

Orders