In this matter, the 1st and 5th defendants, by way of notices of motion, seek to have the statement of claim dismissed. The proceedings as against the 3rd and 4th defendants have been stayed by order of the Supreme Court. There has been no appearance on behalf of the 2nd defendant.
The 1st defendant's notice of motion was filed 19 November 2020 and relies upon an affidavit of Michael Swan sworn that day. That has been marked Exhibit D1-A.
The 5th defendant relies upon a notice of motion filed 16 February 21, and relies upon an affidavit of Ms Faunt 16 February 21, marked Exhibit D5-A.
The plaintiff has relied upon a number of affidavits, namely affidavits of 6 October 2020, 29 January 21 and 16 March 21, together with a number of other documents, the relevance of which is questionable. However, whilst the defendants appearing today noted their objection on the grounds of relevance, they did not oppose the evidence being tendered in order to facilitate the efficient disposition of the application.
The proceedings were commenced by way of statement of claim filed 6 October 2020. The matter came before the Judicial Registrar on 18 November 2020, at which time orders were made including an order that the plaintiff was to serve a report compliant with UCPR 31.36 by 5 February 2021. In addition, the plaintiff was to make any application to amend the statement of claim by 5 February 2021 such application to be returnable 18 February 21.
Ms Clarke, the plaintiff, has informed me today that an amended statement of claim was prepared in November last year, but she did not proceed with the application as she was unable to obtain a report from a speech pathologist which, in her submission, would have satisfied the requirements of UCPR 31.36. It is said by the plaintiff that the action she seeks to bring against the defendants is one in medical negligence.
The 1st defendant is, or was, the plaintiff's general practitioner. The 2nd defendant is a psychiatrist to whom the plaintiff was referred, and the 5th defendant is a hospital in which the plaintiff was admitted for psychiatric care.
The statement of claim is defective in that it fails to identify to the requisite standard or at all the duty of care said to have been owed by the defendants to the plaintiff. I am mindful of the relevance of the Civil Liability Act 2002 (NSW) and in particular Div 2 of Pt 1A relating to duty of care.
Section 5B provides in subsection (1) that:
"A person is not negligent in failing to take precautions against a risk of harm unless--
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions."
Subsection (2) sets out some of the matters to which the Court must have regard in determining whether or not a reasonable person in the position of the defendant would have taken those precautions.
Nowhere in the statement of claim does the plaintiff identify the duty of care owed by any of the defendants against her. She has failed to identify the risk of harm against which precautions should have been taken. Further, she has failed to identify what precautions ought to have been taken against the unknown risk of harm. There is no pleading which would permit any sensible interpretation or determination of the extent to which any such risk was foreseeable, not insignificant, and a risk against which a reasonable person would have taken precautions.
The statement of claim wholly fails to comply with the requirement for pleading required by the Civil Liability Act. The statement of claim instead contains a number of allegations and conclusions against each of the defendants, which vary in terms of their severity, ranging from fairly bland allegations about the attendance of the plaintiff upon some of the doctors, through to allegations of illegal acts and fraudulent conduct. Other than bland and unexplained allegations of such conduct, the statement of claim provides no insight as to the facts or circumstances relied upon by the plaintiff to make out the allegations which she makes against the defendants. Whilst there are references to a duty of care, the statement of claim does not identify what that duty is said to have been and how it was breached.
Again, whilst there is reference to medical negligence, there is an absence of any pleading which would permit the defendants to identify what that negligence was. That is, what was the duty of care, what was the breach and what harm was caused by that breach of duty of care.
The application of the 1st and 5th defendants are brought on a number of bases. First, both the applicant/defendants seek to have the proceedings dismissed under UCPR 13.4. Leaving aside the question of whether the proceedings are frivolous or vexatious, the issue arises as to whether or not the proceedings disclose a reasonable cause of action. In my opinion they do not, and the statement of claim fails to identify any cause of action.
Whilst it may be possible to read between the lines and guess at what the cause of action might be, that is obviously not a course that should be adopted by the Court or by the defendants. The plaintiff must plead, with precision, what her cause of action is, and she has failed to do so here. As a consequence, in my opinion, the statement of claim is an abuse of process of the Court and ought to be dismissed. In my opinion, it would be inappropriate to allow the proceedings to continue beyond today. The claim brought by the plaintiff in the manner in which it is expressed in the statement of claim is, in my view, untenable.
The applicants also rely upon UCPR 14.28 to have the statement of claim dismissed in whole on the basis that, again, it fails to disclose a reasonable cause of action, but also on the basis that it has a tendency to cause prejudice, embarrassment or delay in the proceedings.
I have already found that there is no reasonable cause of action pleaded against either of the applicants disclosed in the statement of claim. I further find that the statement of claim is such as it would cause prejudice to the defendants in that they would have to make assumptions as to what the claim is and prepare a notional defence on the basis of that assumption. That is plainly inappropriate. Further, in my view, the pleading is such that it does cause embarrassment. With the greatest respect to the plaintiff, who represents herself and is very committed to this litigation, the statement of claim is unintelligible and so imprecise that it fails to identify the material factual matters upon which she relies in order to permit the defendants to determine the case it is they need to meet.
Some of the allegations made by the plaintiff in the statement of claim are also confusing. The plaintiff has accepted in the course of exchange this morning that a cause of action is not disclosed in the statement of claim. She had sought to rely upon an amended statement of claim which was prepared in November last year. I have refused her leave to rely upon an amended statement of claim as no such application is presently before the Court.
Further, in my opinion, the statement of claim is so deficient that it is not curable by amendment. In relation to the plaintiff's application to rely upon the proposed amended statement of claim, the plaintiff had the opportunity to do so by filing an application by 5 February 2021, but decided not to file such an application.
The necessary matters to enliven the Court's discretion under UCPR 14.28 have also been made out by the applicants.
The third basis upon which the applicants seek dismissal of the claim is the plaintiff's failure to comply with UCPR 31.36. That rule requires a person commencing a professional negligence claim which includes a medical negligence claim to file and serve with the statement of claim an expert's report including opinions as to the matters referred to in subrule (1)(a) through to (1)(c). The plaintiff has failed to do that in the course of submissions today, the plaintiff informed the Court that she has had difficulties doing that because of COVID but that she has made attempts to obtain an expert's report from a speech pathologist. The reason for doing so is unclear.
The claim brought against the defendants relates to treatment provided, or on the plaintiff's case, some treatment which they failed to provide in relation to alleged psychiatric conditions. A report from a speech pathologist would not satisfy the requirements of UCPR 31.36.
In considering whether to accede to the application brought by the applicants the Court is mindful of the overriding purpose of the rules set out in s 56 of the Civil Procedure Act. That is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In my view, the proper application of 56(1) warrants the immediate dismissal of the plaintiff's action against the applicants.
The plaintiff, as a party to civil proceedings, has a duty under s 56(3) to further the overriding purpose and to participate in the processes of the court and to comply with directions and orders of the Court. In my view, the plaintiff has failed to comply with her obligation under 56(3) to give effect the overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules. In my view, pursuant to Rules 13.4, 14.28 and 31.36 of the Uniform Civil Procedure Rules, the plaintiff's statement of claim filed 6 October 2020 must be dismissed.
[2]
NOTE:
A. These remarks on sentence were revised without access to the Court File.
I certify that the previous 24 paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC.
J Bailey
Associate
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Decision last updated: 17 June 2021