Klewer v The Royal Alexandra Hospital for Children

The matter before the Court was an action for damages for personal injury arising from alleged medical negligence. The plaintiff, Mr Klewer, brought the proceedings against The Royal Alexandra Hospital for Children, a public hospital in New South Wales. The dispute centred on the hospital's alleged failure to adhere to the required standard of care in the treatment of Mr Klewer, which resulted in his injuries. The Court was required to consider whether the hospital breached its duty of care and, if so, the extent of the damages to be awarded.

The primary legal issue was whether the Court should strike out the plaintiff's claim due to the failure to file an expert's report with the statement of claim, as required by the Civil Procedure Rules. The plaintiff had previously been granted consent orders to extend the time for filing the expert's report and other liability evidence. The hospital argued that the plaintiff had not yet demonstrated failure of due despatch in obtaining the report, and therefore, the claim should be struck out. The Court needed to determine whether the plaintiff's delay in filing the expert's report justified the striking out of the claim.

In considering the matter, the Court examined the circumstances surrounding the delay in filing the expert's report. The Court noted that the plaintiff had obtained consent orders to extend the time for filing the report and that the hospital had not opposed the plaintiff's application for further extensions. The Court also considered the plaintiff's efforts to obtain the report and the reasons for the delay. Ultimately, the Court held that the plaintiff had not yet demonstrated failure of due despatch, as the delay in filing the report was not unreasonable or inexcusable. Consequently, the Court dismissed the hospital's motion to strike out the claim.

The Court ordered that the claim proceed to trial and that the parties exchange expert reports and further particulars. The Court emphasised the importance of adhering to the timelines set out in the consent orders and warned that any further delay in filing the expert's report could result in the striking out of the claim. The Court also ordered that the parties bear their own costs of the motion.