Klewer v The Royal Alexandra Hospital for Children [2010] NSWSC 18 (3 February 2010)

Last Updated: 9 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Klewer v The Royal Alexandra Hospital for Children [2010] NSWSC 18


JURISDICTION:
Common Law

FILE NUMBER(S):
20020/2009

HEARING DATE(S):
29 October 2009, 14 December 2009

JUDGMENT DATE:
3 February 2010

PARTIES:
Robert Carl Klewer (Plaintiff)
The Royal Alexander Hospital for Children (Defendant)

JUDGMENT OF:
Rothman J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
E Romaniuk (Plaintiff)
R Weinstein (Defendant)

SOLICITORS:
Teakle Ormsby Conn Lawyers (Plaintiff)
General Insurance Law Department (Defendant)


CATCHWORDS:
PRACTICE AND PROCEDURE – personal injury from alleged medical negligence – failure to file expert’s report with statement of claim – motion to strike out – previous consent orders issued for filing of liability evidence – not yet failure of due despatch

LEGISLATION CITED:
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY:
Procedural and other rulings

CASES CITED:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Salzke v Khoury [2009] NSWCA 195
Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410

TEXTS CITED:


DECISION:
(i) The plaintiff shall, by 26 February 2010, file and serve expert medical evidence that includes an opinion supporting a breach of duty of care against each person sued for professional negligence, and the causal relationship alleged between such breach of duty and the damage alleged;[<br>][<br>](ii) The defendant's motion for dismissal of the proceedings for want of due despatch be stood over for directions before me at 9.30am on 15 March 2010;[<br>][<br>](iii) The defendant's motion for dismissal of the proceedings otherwise be dismissed;[<br>][<br>](iv) Costs of the motion be reserved, to be dealt with on 15 March 2010.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ROTHMAN J

3 FEBRUARY 2010

20020/2009 Robert Carl Klewer v The Royal Alexandra Hospital for Children

JUDGMENT

1 HIS HONOUR: The defendant, The Royal Alexandra Hospital for Children (“the Hospital”), moves for orders dismissing the proceedings either because expert reports were not filed in accordance with Rule 31.36 of the Uniform Civil Procedure Rules 2005 (“UCPR”), or for want of prosecution pursuant to UCPR 12.7(1). The proceedings are based on alleged medical negligence and the description of the issues and allegations are, for the purpose of this judgment, taken from the statement of claim.

Facts

2 The plaintiff, Mr Klewer, commenced proceedings by statement of claim filed on 22 January 2009 (wrongly stamped 2008) in which Mr Klewer alleged that he suffered personal injury arising from the negligence of the Hospital. The alleged negligence is said to have occurred on or shortly after 17 February 1992, when Mr Klewer was four years of age. At that time, Mr Klewer, it is alleged, was suffering from right arm weakness, clumsiness, abnormal posturing of the right arm and hemiparesis of the right arm and face.

3 On 2 March 1992, a neurosurgeon performed a right frontal craniotomy with resection. On 4 April 1992, after earlier discharge from the Hospital, Mr Klewer was readmitted with an infection and underlying osteomyelitis. On 6 April 1992, further surgery was conducted on Mr Klewer for the removal of an infected bone flap. Mr Klewer was again discharged and continued to suffer symptoms from the tumour and osteomyelitis.

4 The UCPR require, in the case of alleged medical negligence, that the plaintiffs file and serve an expert’s report that includes an opinion supporting the breach of a duty of care, the general nature and extent of damage alleged, and the causal relationship between the breach and the damage: UCPR 31.36. The aforesaid rule requires that the expert report be filed and served by a person commencing, inter alia, a medical negligence claim. Mr Klewer did not file such a report.

5 On 17 June 2009, the matter came before the Registrar. Consent orders issued, by which the plaintiff was required “to serve expert medical evidence on liability by 15 July 2009”. Mr Klewer has not complied with that timetable. Prior to the directions issued by the Registrar, there had been communication between the Hospital and Mr Klewer (which includes, for present purposes, his legal representatives) relating to the provision of expert reports and clinical records.

6 On 27 July 2009, solicitors for the Hospital wrote requiring the provision of expert evidence, in accordance with the directions of the Registrar, by 31 July 2009. Telephone conversations occurred, which sought to follow up on that request. In the telephone conversation of 1 July 2009, the then solicitor for Mr Klewer expressed the view that an expert report would be available in a week or two. The period in which to serve the plaintiff’s liability evidence was extended to 14 August 2009, again by consent.

7 On 26 August 2009, the motion with which the Court is currently dealing was filed, together with the affidavit of Ms Lisa Robinson sworn 24 August 2001. That affidavit sets out some of what has been summarised above.

8 On 3 September 2009, Mr Klewer’s solicitor swore an affidavit that itemised the briefs to counsel, the chasing-up of counsel, the qualification of a medical expert, or the attempts at same, and the delays occasioned by the obtaining of an appropriate medical report. It is clear that, eventually, a medical report was obtained, which has not been served or filed. The Court is entitled to infer that the report does not assist Mr Klewer’s case. The then solicitor withdrew from the proceedings. Others replaced him. As a consequence of that replacement, the motion was stood over from 18 September 2009 until 29 October 2009.

9 A further affidavit of Mr Klewer’s then legal representative was filed and served and was used as the basis for an application for a further eight week adjournment. The Court granted that adjournment and the matter was stood over from 29 October 2009 until 14 December 2009, at which time the matter, once more, came on for hearing.

10 In the meantime, the solicitors who currently represent Mr Klewer filed a notice of appearance and a further affidavit of one of its employees, Ms Powell. Ms Powell’s first affidavit (sworn 20 November 2009) attests to the fact that no expert opinion had yet been received by the solicitors then appearing for Mr Klewer. It also expressed the view that it was difficult, in such a small area of expertise, to obtain a suitably qualified paediatric neurosurgeon, inter alia, because of alleged conflicts.

11 On 7 December 2009, Ms Powell’s assistant affirmed an affidavit testifying that an expert in infectious diseases was required to provide an opinion relating to the contracting of osteomyelitis. That expert is currently overseas and was to have returned on 14 December 2009. He would be at work for one week and a report would not be available, it is anticipated, until the end of February 2010. The affidavit expresses the view that the legal representatives of Mr Klewer would be in a position to serve the expert report of the paediatric neurosurgeon prior to 25 December 2009.

Consideration

12 The provisions of UCPR 31.36 make clear that a person commencing medical negligence actions must file and serve an expert’s report supporting the negligence. This is clear from the provisions of UCPR 31.36(1). However, a failure to file an expert’s report, of the requisite kind, does not invalidate the commencement of proceedings. This is clear from the provisions of UCPR 31.36(3). The failure to serve the expert report permits the Court, by order, made on application of a party or of its own motion, to dismiss the whole or any part of the proceedings. The failure to comply with the requirement of an Act or regulation does not, without further order, invalidate the conduct: Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291; Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410. In this case, the UCPR provides the remedy, and it is unnecessary to construe sub rule 31.36(1) as invalidating any commencement that does not comply with those terms.

13 Further, the consent orders issued by the Registrar on 17 June 2009 would, in any event, be a situation where “the court orders otherwise”, and even if a failure to file and serve an expert report on commencement would otherwise invalidate the proceedings, the orders of the Registrar permitted the filing and serving at a later time. In that sense, UCPR 31.36 is not engaged: Salzke v Khoury [2009] NSWCA 195 at [35]. While in Salzke, supra, the Court of Appeal had a clearer example (because the orders of the Registrar were made prior to the commencement of the proceedings), once an order of the Registrar or Court issues, requiring the filing of expert reports otherwise than at commencement, there is an “order otherwise”, which expressly or impliedly replaces the requirements of the rule. The only issue that is now before the Court is whether further time should be allowed.

14 The Hospital, over and above its reliance upon UCPR 31.36, moves under UCPR 12.7 for dismissal of the proceedings for want of due despatch. Any exercise of discretion must be informed by the provisions of the Civil Procedure Act 2005, and in particular the provisions of sections 56 to 58. This requires the Court (and the parties) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

15 The power in UCPR 12.7 is not to be applied rigidly and delay is not simply the passage of time. The express power to dismiss because the party has failed to comply with the directions of the Court is contained in section 61(3) of the Civil Procedure Act. In this Court, at least, there is also an inherent power to achieve the same result. The exercise of discretion to dismiss as a result of non-compliance with the direction must have regard to the degree of delay, the rights of parties to have the real issues determined and issues of case management: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In this case, Mr Klewer, through his various legal representatives, has approached the Court to extend time, rather than simply fail to comply with the directions. However, continuing extensions of time raise issues of want of prosecution, on which the Hospital now relies.

16 Sometimes, the passage of time may be for good reason that would not constitute delay and, certainly, would not constitute want of due despatch. As has been properly conceded by counsel for the Hospital, on the material currently before the Court, the link between a breach of duty, if there be any, and damage is unknown, to the plaintiff and to the Court. As a consequence, Mr Klewer, were this matter to be dismissed at this stage, would have significant prospects of obtaining an extension of time to commence further proceedings in or to the same effect. In those circumstances, a further delay of one or two months (especially in circumstances where the lapse of time has not been occasioned by any fault of Mr Klewer) would not seem to prejudice, any more than otherwise, the Hospital and ought not be a basis for dismissal of the proceedings.

17 Further delays, either unexplained or as a result of a failure to identify liability in the Hospital, may occasion a different result. But a delay to the end of February 2010, for the reasons provided on affidavit, is not, at this stage, sufficient to warrant the striking out of the proceedings. Given that the Hospital is still unaware of the alleged negligence, it is also inappropriate to dismiss its motion. For those reasons, the motion will be stood over for directions.

18 The Court makes the following orders and directions:

(i) The plaintiff shall, by 26 February 2010, file and serve expert medical evidence that includes an opinion supporting a breach of duty of care against each person sued for professional negligence, and the causal relationship alleged between such breach of duty and the damage alleged;

(ii) The defendant’s motion for dismissal of the proceedings for want of due despatch be stood over for directions before me at 9.30am on 15 March 2010;

(iii) The defendant’s motion for dismissal of the proceedings otherwise be dismissed;

(iv) Costs of the motion be reserved, to be dealt with on 15 March 2010.

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LAST UPDATED:
8 February 2010