Van Kleef v Tran

[2016] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Van Kleef v Tran

Citation:

[2016] ACTSC 316

Hearing Date:

27 October 2016

DecisionDate:

27 October 2016

Before:

Mossop AsJ

Decision:

See [36]

Catchwords:

PRACTICE AND PROCEDURE – Pre-court procedures under the Civil Law (Wrongs) Act 2002 (ACT) – Obligation to serve reports about the claimant’s medical condition under s 64 – Reports obtained but not served –– Application under s 75(2) for order permitting reliance on medical reports notwithstanding failure to serve reports prior to commencement of proceedings –Deliberate decision by plaintiff’s solicitor not to serve reports – Where plaintiff’s solicitor acted without instructions from the plaintiff – No evidence to establish that failure to serve reports caused significant prejudice to defendant – Leave granted – Costs awarded against plaintiff on a party and party basis – Whether order ought to be made pursuant to r 1753(3) – Whether costs order should be made against solicitor

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 64, 75

Court Procedures Rules 2006 (ACT), r 1753

Parties:

Joshua Van Kleef (Plaintiff)

Tuan Quoc Tran (Defendant)

Representation:

Counsel

L Casey (Plaintiff)

J Ronald (Defendant)

Solicitors

Sparke Helmore (Plaintiff)

Ken Cush & Associates (Defendant)

File Number:

SC 327 of 2016

MOSSOP AsJ:

Introduction

1. These proceedings were commenced by originating claim on 25 July 2016.  The plaintiff alleges that the defendant, a general practitioner, was negligent in the treatment which was provided to the plaintiff on 23 February 2011.  The plaintiff alleges that he had sustained an injury while playing soccer as a result of being kicked on the back of his right leg above the ankle.  The plaintiff alleges that the defendant diagnosed a soft tissue injury and advised that the appropriate treatment was rest.  He did not advise the plaintiff that he should be referred to a specialist or have an ultrasound.  He did inform the plaintiff that his Achilles tendon was intact and not ruptured.  The plaintiff subsequently consulted the defendant in 2013 complaining of pain above the ankle and some swelling.  In December 2013 an ultrasound examination was undertaken and demonstrated that there had been a complete tear of the musculotendinous junction that had healed with scar tissue.  The plaintiff claims damages as a result.

The application

1. The present application, which was filed on 19 September 2016, seeks the following orders:

1.That leave be granted to the plaintiff to rely upon the medical reports of Dr James Lynch, general practitioner, dated 13 August 2014 and 28 July 2015 notwithstanding the failure of the plaintiff to serve the reports prior to the commencement of proceedings;

2.That the plaintiff pay the defendant’s costs on a party/party basis directly arising out of the failure to serve the reports of Dr James Lynch, general practitioner, dated 13 August 2014 and 28 July 2015, as agreed or assessed, and payable at the conclusion of the matter. 

3.    Any other orders that the court considers appropriate.

1. Section 64 of the Civil Law (Wrongs )Act 2002 (ACT)…