Jaiswal v Jamieson - [2022] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jaiswal v Jamieson
Citation:	[2022] ACTSC 278
Hearing Date:	20 September 2022
DecisionDate:	11 October 2022
Before:	McWilliam AsJ
Decision:	(1) On or before 22 November 2022, the defendant (claimant) is to provide further particulars in respect of each of the plaintiffs (the doctors) as follows: (a) The signs or symptoms relating to breast abnormalities reported by the claimant to each doctor and the dates when such symptoms were reported. (b) The steps (either investigations or diagnosis) that the claimant says each doctor should have undertaken or made. (c) The date/s on or by which it is claimed each doctor ought to have either: (i) diagnosed breast cancer, or (ii) taken steps that would have resulted in such a diagnosis. (d) The consequence (in terms of treatment, prognosis or other outcome) that the claimant alleges would have resulted had the said diagnosis or investigations been made or undertaken. (2) On or before 6 February 2023, the claimant is to provide a verified statement setting out the following: (a) When the claimant attended upon any of the doctors in relation to any condition or symptom pertaining to her breasts; (b) What treatment was provided, or investigations recommended; (c) Whether the claimant pursued the investigations recommended; and (d) What further advice the claimant was given having regard to the results of any such investigations. (3) Each party is to pay their own costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – APPLICATION – Application to compel an injured claimant to provide a Personal Injury Claim Notification and verified statement that complies with ss 51 and 64 of the Civil Law (Wrongs) Act 2002 (ACT) – whether the claim was adequately particularised – whether the doctors’ request for a verified statement of various information was reasonable.
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 49-80 Civil Law (Wrongs) Regulation 2003 (ACT) r 4 Personal Injuries Proceedings Act 2002 (Qld) ss 9-44 Civil Law (Wrongs) Amendment Bill 2003
Cases Cited:	Ahuja v Chambeyron [2021] ACTSC 267 Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Haug v Jupiters Ltd [2007] QSC 68
Parties:	Nikhil Jaiswal (First Plaintiff) John Greblo (Second Plaintiff) John Reeve (Third Plaintiff) Keischa Jamieson (Defendant)
Representation:	Counsel W L Sharwood (First, Second, and Third Plaintiff) D Crowe (Defendant)
Solicitors Avant Law (First, Second, and Third Plaintiff) Chamberlains Law Firm (Defendant)
File Number:	SC 180 of 2022

McWilliam AsJ:

This application is made by three general practitioners (the doctors), who are responding to a “Personal Injury Claim Notification” served on each of them by Ms Jamieson, as required by the pre-court procedures set out in chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). The contents of the notices are in identical terms save for the name of the doctor to whom each was addressed.

The doctors complain that insufficient information has been provided to them to be able to properly understand the…

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 Jaiswal v Jamieson

Details

AGLC: Jaiswal v Jamieson [2022] ACTSC 278
Case: [2022] ACTSC 278
Decision Date

CaseChat Overview and Summary

In Jaiswal v Jamieson, three general practitioners brought an application against Keischa Jamieson, who was diagnosed with breast cancer in January 2021. The doctors contended that Ms Jamieson had not provided sufficient information to them to understand the scope of her claim or to assess their potential liability. The application sought further particulars from Ms Jamieson, as well as a verified statement from her. The Supreme Court of the Australian Capital Territory was required to determine whether Ms Jamieson had complied with the statutory requirements for providing information under the Civil Law (Wrongs) Act 2002 (ACT). The Court found that Ms Jamieson had not provided the information in a form that was sufficiently specific to enable the doctors to properly investigate and respond to the claim. The Court ordered Ms Jamieson to provide further particulars and a verified statement to the doctors within specified timeframes. Each party was ordered to pay their own costs of the application.

Orders