Van Kleef v Tran
[2016] ACTSC 316
•27 October 2016
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
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
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.
Section 64 of the Civil Law (Wrongs )Act 2002 (ACT) (CLW Act) provides:
64 Claimant to give documents etc to respondent
(1) A claimant must give a respondent—
(a) copies of the following in the claimant’s possession:
...
(ii) reports about the claimant’s medical condition or prospects of rehabilitation;
(iii) reports about the claimant’s cognitive, functional or vocational capacity; and
...
(2) The claimant must give the copies mentioned in subsection (1) (a)—
(a) within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the claimant gives notice of the claim under part 5.2, or purportedly under part 5.2); and
(b) to the extent that a report or other document mentioned in subsection (1) (a) comes into the claimant’s possession later, within 7 days after the day it comes into the claimant’s possession.
...
(4) If a respondent requires information given by a claimant under this section to be verified, the claimant must give the respondent a statement verifying the information.
...
Section 75 of the CLW Act provides:
75 Consequences of failure to give document
(1) This section applies if a party fails to comply with a provision of this chapter requiring the party to disclose a document to another party.
(2) The document cannot be used by the party in a later court proceeding based on the claim, or the deciding of the claim, unless the court orders otherwise.
(3) If the document comes to the other party’s knowledge, the document may be used by the other party.
Evidence
The plaintiff read the affidavits of Liam James Casey dated 15 September 2016 and 27 October 2016. The defendant tendered a schedule of correspondence filed on 23 September 2016, a further schedule of correspondence and an affidavit of Sangeeta Sharmin both dated 27 October 2016. This evidence discloses the following facts.
On 23 December 2011 the plaintiff consulted the defendant in relation to the injury.
On 11 February 2014 the defendant was served with the notice of the claim pursuant to the CLW Act.
On 18 February 2014 the solicitors for the defendant wrote to the solicitors for the plaintiff requesting further information.
On 17 July 2014 the plaintiff’s solicitors requested a report from Dr James Lynch, a general practitioner in Victoria. The request set out the history in relation to the dealings with the defendant on 23 December 2011 and requested an opinion as to whether or not the treatment provided by the defendant fell below a reasonable standard of care expected of a general practitioner.
Dr Lynch’s report is dated 13 August 2014 and I infer that it was received by the plaintiff’s solicitors shortly thereafter.
On 22 October 2014 the plaintiff’s solicitors requested a report from Dr David Lunz, an orthopaedic surgeon.
By letter dated 3 December 2014 the plaintiff’s solicitors served the report of Dr Leon Le Leu of that date.
On 2 February 2015 the defendant’s solicitors requested information under s 64(1)(a)-(b) and a statutory declaration under s 64(4) of the CLW Act.
On 13 February 2015 the plaintiff’s solicitors wrote to the defendant’s solicitors stating: “The plaintiff has served all documentation obtained in relation to this matter to date.”
On 13 March 2015 the plaintiff was examined by Dr Lunz. The report of Dr Lunz dated 27 April 2015 was received by the plaintiff’s solicitors on 7 May 2015.
On 10 June 2015 the plaintiff served the report of Dr Lunz.
Dr Lynch prepared a supplementary report dated 28 July 2015 which, I infer, was received by the plaintiff’s solicitors shortly thereafter. Dr Lunz also prepared a supplementary report dated 20 October 2015. That report was served by letter dated 20 January 2016.
Proceedings were commenced on 21 July 2016. Pursuant to the obligation under paragraph 13 of Practice Direction No 2 of 2014, the plaintiff’s solicitors included a list of medical experts and specialisations amongst the documents served with the originating claim. Although only specialisations were required, the list included the names of the experts and the dates of their reports. By this means the defendant was alerted to the fact that the plaintiff proposed to rely upon the two reports of Dr Lynch.
There was also a factual issue which arose from the affidavit of Mr Casey, a solicitor employed by the plaintiff’s solicitors, dated 27 October 2016. That affidavit discloses that on 31 August 2015 the solicitors for the defendant had requested all letters of instruction and briefing material in relation to the reports of Dr Le Leu dated 3 December 2014 and the report of Dr Lunz dated 27 April 2015. A letter dated 30 September 2015 from the plaintiff’s solicitors stated that it was enclosing the letters of instruction to Dr Le Leu and Dr Lunz “and enclosures”. In each of the letters of instruction, documents enclosed are listed as including “report of Dr James Lynch, expert general practitioner, dated 13 August 2014”. There was no dispute that these letters of instructions were provided and that they did refer to the report of Dr Lynch. There was, however, an issue as to whether or not a copy of the report was sent with the letter dated 30 September 2015. The letter does not list the enclosures. Counsel for the defendants explained that upon receipt of such documents the system within the defendant’s solicitors’ office was that annexures to such letters would be separated and stored in a document file separate from the correspondence. Without obtaining evidence from the staff involved it was not possible to say whether or not duplicate copies of the documents would be removed so as to be able to determine whether an earlier received copy of Dr Lynch’s reports would be included in the documents file. However, prior to insisting on the bringing of this application the defendant solicitors had searched for copies of the report of Dr Lynch without success. All of this was explained on the basis that it was not necessary for Ms Sharman to give evidence formally to the effect of that explanation.
In those circumstances, I am satisfied that the documents served on 30 September 2015 contained a reference to the expert report of Dr Lynch of 13 August 2014 which would have, had the documents been read with care, identified the existence of that report but I cannot be satisfied on the balance of probabilities that the report was in fact included in the material annexed to the letter of 30 September 2015.
Non-compliance with s 64
The plaintiff clearly did not comply with his obligation under s 64(1)(a)(ii). That is because the report of Dr Lynch dated 13 August 2014 was not served within seven days of receipt and the report of Dr Lynch dated 20 July 2015 was also not served within seven days of receipt. As a consequence under s 75(2) those documents cannot be used by the plaintiff in these proceedings unless the court otherwise orders. Similarly, unless there is a “proper reason” the plaintiff is liable under s 64(4) for costs to the respondent resulting from the failure.
Explanation for non-compliance
The explanation for that non-compliance is said to be provided by the affidavit of Mr Casey dated 15 September 2016. That affidavit provided:
3. On 17 July 2014 I caused a briefing letter to be sent to Dr James Lynch, expert general practitioner, to provide a primary report in relation to duty of care and causation (LJC1).
4. Dr Lynch provided a report dated 13 August 2014 (LJC2).
5. As Dr Lynch provided a supportive opinion for the Plaintiff in relation to breach of duty, I determined that a report was required from an expert orthopaedic surgeon, Dr David Lunz, to comment on causation and to provide the appropriate context for Dr Lynch’s report.
6. On 22 October 2014, I caused a briefing letter to be sent to Dr Lunz (LJC3).
7. I did not serve the report of Dr Lynch of 13 August 2014 at the time of receipt, as it my intention to serve it jointly with Dr Lunz’s report [sic], to allow the Defendant to understand the breach of duty and causation arguments together.
8. Dr Lunz provided a report dated 27 April 2015 (LJC4).
9. Dr Lunz’s report dealt with a number of issues in relation to causation, in addition to raising a further breach issue which needed to be dealt with by Dr Lynch by way of a supplementary report. That further issue related to the standard expected of a reasonable general practitioner regarding the history provided to the Defendant and the arranging of an ultrasound in that context. The Plaintiff’s breach of duty argument would be incomplete absent a supplementary report from Dr Lynch addressing that issue.
10. I elected to delay the service of the first report of Dr Lynch with the expectation to serve it in conjunction with Dr Lynch’s supplementary report once received.
11. Given it had been some months after the personal injury claim notification had been issued upon the Defendant, I elected to serve the report of Dr Lunz dated 27 April 2015 under cover letter dated 10 June 2015. This was done with a view to provide the Defendant with at least the causation evidence, whilst the breach of duty evidence was being finalised (LJC5).
12. Dr Lynch ultimately provided his supplementary report dated 28 July 2015 (LJC6).
13. Unfortunately, due to unfortunate oversight on my part, both reports of Dr Lynch were not served upon the Defendant.
14. I continued to finalise the Plaintiff’s evidence, which included a report from Dr Leon Le Leu dated 3 December 2014 (LCJ7) and a supplementary report from Dr Lunz dated 20 October 2015 (LJC8). I caused letters to be sent to the Defendant serving those reports dated 3 December 2014 (LJC9) and 20 January 2016 (LJC10).
15. When the originating process was drafted along with the various other ancillary documents compiled some ten months later, I incorrectly assumed all medico-legal reports had been served in this matter. I recorded all of the Plaintiff’s experts in the list of medical experts on that incorrect assumption. I caused a letter to be sent to the Defendant serving the originating process dated 27 July 2016, with enclosures (LJC11).
A number of points can be made about this explanation. There are explanations for non-service given in paragraphs 5, 7, 9, 10 and 11. References to Mr Casey “electing” or “determining” must be interpreted upon the basis that he was aware of his client’s obligation to disclose the material. In other words his evidence must be understood as being “I elected, notwithstanding being aware of my client’s obligation to do so, to not serve the report because of the reasons set out”. The only point at which there was an oversight was after Dr Lynch provided his supplementary report dated 28 July 2015. There appears to have been wilful non-compliance with the statutory obligation on the following dates:
(a)the date when Dr Lynch provided his report dated 13 August 2014, when Mr Casey decided not to serve the report because he wanted also to obtain and opinion from an orthopaedic surgeon relevant to causation “to allow the defendant to understand the breach of duty and causation arguments together”;
(b)the date when Dr Lunz provided his report dated 27 April 2015, Mr Casey decided that he would request a further report from Dr Lynch so as to be able to serve the reports of Dr Lunz and Dr Lynch together;
(c)as at 10 June 2015 Mr Casey decided to serve the report of Dr Lunz but to not serve the first report of Dr Lynch until his second report was received.
In the absence of any statutory obligation under s 64 the explanations given by Mr Casey might be persuasive. However, nothing in the affidavit deals expressly with whether Mr Casey when making the decision that he did was conscious of the fact that his decisions were putting his client in breach of the obligation under s 64. Having regard to the notoriety of s 64 amongst solicitors who routinely practice in personal injury litigation, I have to assume that Mr Casey was aware of his client’s obligation and made a deliberate decision not to comply with it.
I accept that there was little incentive for the plaintiff to withhold favourable medical reports and that there may have been some utility in serving medical reports all at once so as to avoid a process of reply evidence from experts which had the potential to become cumbersome. However, notwithstanding the explanations given by Mr Casey of his benign intention, it must be recognised that the statute requires what it requires and it is not appropriate for a solicitor to “elect” or “determine” not to comply with the statutory obligation on his or her client. If the inflexible obligation under the Act is seen as inappropriate then the course used to seek to have the obligation modified rather than non-compliance in circumstances where the consequences of that non-compliance are unwanted.
Although it would generally be appropriate to assume that the conduct of a solicitor is based upon the instructions of the client, in the present case Mr Casey’s affidavit makes no reference at all to obtaining instructions from his client as to how to deal with service of reports and the manner in which he refers to how the decision was made is consistent with him having made a decision without the benefit of specific instructions from his client.
Appropriate orders
In the circumstances, refusing to permit reliance upon the reports of Dr Lynch would require the plaintiff to obtain a further opinion from a general practitioner covering the same ground as that covered in Dr Lynch’s reports. That process would, in my view, needlessly duplicate the work done and expense already incurred. It would have the effect that although the defendant would not, if it is ultimately required to pay the costs of the proceedings, bear the costs of the report of Dr Lynch, it would bear the costs of any replacement reports. The effect, therefore would be to increase the costs burden of proceedings upon the plaintiff, but not reduce the cost burden upon the defendant.
Counsel for the defendant submitted that by reason of the non-compliance with the statutory obligations the defendant had suffered irreparable prejudice because he had been denied the opportunity to resolve the claim prior to the commencement of proceedings. While I accept that the purpose of the pt 5.3 of the CLW Act is to put parties in a position where they have enough information to assess liability and quantum in relation to a claim and hence the denial of access to the report may have affected the position of the defendant, there is no evidence that it did.
Further the obligation of the plaintiff was to serve such material as the plaintiff had, there was no positive obligation to provide medical reports at this early stage of the claim.
There was certainly no evidence to support the written submission made by the defendant that it had been “preparing for an entirely different case for the last two years due to the plaintiff’s solicitors’ error”.
Insofar as the defendant submitted that it would be unable to comply with the timetable required by the Practice Direction No.2 of 2014, I accept that the failure to serve a report which was previously available may have inhibited the early preparation of medical reports in reply by the defendant. However, the timetable under the Practice Direction is not inflexible if there are good reasons which warrant its adjustment and, in any event, some portion of any delay arising from the necessity for the Court to deal with this application can be attributed to the attitude of the defendant in dealing with it.
The defendant also submitted that I should deny the plaintiff the costs of the reports of Dr Lynch. In my view that would not be appropriate. Ex hypothesi if they are permitted to be used, and they are admitted, then they are reasonable expenses that have been incurred in the prosecution of the case. To deny the plaintiff his costs of those reports would not be a response which was properly connected with the failure to comply with s 64. I do not consider that an unrelated punitive costs sanction should be imposed simply because a costs sanction is one of the two consequence identified by the statute for non-compliance with the s 64 obligations.
The appropriate course in the circumstances is to permit the plaintiff to rely upon the medical reports. It is appropriate that the plaintiff pay the defendant’s costs of the application in proceedings. I do not accept the defendant’s submission that the costs should be awarded on an indemnity basis. I observe that the position adopted by the defendant gives rise to some suspicion that the defendant was seeking to maximise the plaintiff’s discomfort, and in particular costs discomfort, as a result of the necessity to make the application and pursue it to a contested hearing. However, because of that concern and the absence of any prejudice of significance in the running of the case, I do not consider it an appropriate case in which an award of indemnity costs should be made. Insofar as s 64(4) operates in relation to costs incurred for the purposes of these proceedings which would otherwise be awarded in any event pursuant to of the Court Procedures Rules 2006 (ACT) (CPR) I do not consider that the reference to “costs” in s 64(4) necessarily includes all costs incurred. Therefore I consider it open to make an order for costs on a party and party basis.
Rule 1753(3) of CPR permits the Court, on its own initiative, to order a legal practitioner not to charge the practitioner’s client costs in relation to all or any part of the proceeding if justice requires it. I consider that such an order is appropriate in relation to the costs of the present application. The evidence does not indicate that the plaintiff himself was responsible for the nondisclosure of the reports and it is not an inference that I am prepared to draw from the circumstances that he was. The default appears to have arisen solely because of Mr Casey’s decisions. In those circumstances, I consider that it would be inappropriate for Mr Casey to be permitted to charge his client costs of remedying his own default. As a consequence I am satisfied that, unless an appropriate undertaking is given, justice requires an order under r 1753(3).
It also appears to me to be a case where it would be appropriate that Mr Casey pay the costs that I will order the plaintiff must pay to the defendant. That is once again because the liability for costs arose from the decisions of Mr Casey to put his client in default of his obligations under s 64 of the CLW Act. In contrast to r 1753(3), r 1753(2) of the CPR does not provide that an order may be made on the Court’s own motion. Therefore, I consider that, unless a suitable undertaking is given, the appropriate order is to give liberty to apply for such an order should there not be an agreement by Mr Casey or his firm to meet those costs.
[Mr Casey gave an undertaking in relation to costs.]
The orders of the Court are:
1. Leave is 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 in accordance with his obligation under s 64 of the Civil Law (Wrongs)Act 2002 (ACT).
2. The plaintiff is to pay the defendant’s costs of the application in proceedings dated 19 September 2016.
3. The costs of the subject of order 2 may not be assessed until the proceedings end.
4. I note the undertaking given by Mr Casey to pay the costs ordered to be paid by the plaintiff under order 2 and to not charge the plaintiff costs in relation to the application in proceeding dated 19 September 2016.
5. The proceedings are listed before the Deputy-Registrar on 31 October 2016 at 9.30am for a first directions hearing.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 7 November 2016 |
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