Kerr v Calvary Health Care ACT Ltd [2025] ACTSC 106

1. The plaintiff in these proceedings claims damages for medical negligence arising from the circumstances of her giving birth to her first child. Before the Court is an application seeking leave pursuant to s 79(1) of the Civil Law (Wrongs) Act 2002 (ACT) nunc pro tunc to commence the proceedings.

2. The plaintiff suffered injuries during her labour and the delivery of her infant son while at Calvary Public Hospital on 12 October 2021. She served a personal injury claim notification form on 25 November 2022.

3. On 16 March 2023, the defendant’s legal representatives confirmed that the defendant accepted that the personal injury claim notification was a complying notice of claim. That marked the beginning of the period during which the parties were required to take various steps in accordance with Ch 5 of the Civil Law (Wrongs) Act with a view to attempting to resolve the proceedings without the need to resort to litigation.

4. The injuries being alleged to have occurred on 12 October 2021, the limitation period for the plaintiff’s claim expired on 11 October 2024. The proceedings were commenced that day. When the proceedings were commenced, leave was not sought under s 79 of the Civil Law (Wrongs) Act to commence the proceedings notwithstanding the fact that the Ch 5 processes had not yet been worked through.

5. On 18 November 2024, the plaintiff served three expert reports, to which I will return.

6. The plaintiff contends, and it may readily be accepted, that it was necessary to commence the proceedings on 11 October 2024 to preserve her rights given the impending expiry of the three-year limitation period.

7. On 11 December 2024, by consent, Mossop J granted a stay of the proceedings to allow the required pre-court procedures under Ch 5 to be worked through. The period of the stay has now expired. His Honour’s orders, made by consent, included an order granting leave to the plaintiff to file the present application.

8. It may be seen from the foregoing that the proceedings were commenced in circumstances where the plaintiff had served a compliant notice but where not all of the Ch 5 processes had been worked through. The commencement of proceedings in such circumstances were considered by me in Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231. In unrelated proceedings that came before me in the civil applications list this morning, it has been argued that, contrary to my analysis of the legislation in Maletic, it is not necessary for the parties to have completed all of the steps contemplated by Ch 5 before the plaintiff may commence proceedings without leave, but only for the plaintiff to have served a compliant notice of claim. That argument was based on the provisions of s 51 of the Act, which provides: Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.

9. That is the only statutory provision directed to steps a plaintiff must take before commencing proceedings. In Maletic, I concluded, however, that the provisions of s 79 extended the plaintiff’s obligations. That section provides: The court, on application by a claimant, may give leave to the claimant to begin a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this chapter if the court is satisfied there is an urgent need to begin the proceeding.

10. The implication of s 79, perhaps contrary to the express terms of s 51, is that all of the steps required of both parties under Ch 5 must be complied with before a claimant commences proceedings or else the claimant must seek the leave of the court which, in accordance with the terms of s 79, will only be granted if the court is satisfied that there is an urgent need to begin the proceeding.

11. It is not necessary to resolve that interesting question for the purposes of the present application. The parties were content to proceed on the assumption that leave is required. Furthermore, the defendant neither opposed nor consented to the application. It is clear on the material before me that leave, assuming it is required, should be granted.

12. The application was supported by an affidavit affirmed on 20 December 2024 by Mr Tierney, who acts for the plaintiffs. His affidavit annexes the three expert reports to which I have referred. Those reports indicate that, as to both liability and causation, there is an arguable case. Further, as I have already explained, the limitation period was due to expire if the proceedings were not commenced when they were.

13. The injuries the plaintiff claims to have suffered as a result of alleged negligence on the part of the defendant were occasioned during the birth of her son, when her labour accelerated quickly. It was evidently decided not to give her an episiotomy before a particular process was applied to extract the child in circumstances where the child’s heartbeat was becoming erratic. As the medical evidence suggests, because no episiotomy was performed, she suffered a considerably greater tear than might otherwise have been the case. She has ongoing symptoms and sequelae as a result of those events.

14. Separately, the evidence indicates that the plaintiff appears otherwise to have engaged meaningfully in the processes required under Ch 5. There does not appear to be any suggestion that it is her fault that those processes have not completed between the time when she served notice of her claim and the time when she commenced proceedings. In all the circumstances, I am satisfied that it is appropriate to make the order sought.

Orders

15. For those reasons I make the following orders: (1) Grant leave to the plaintiff nunc pro tunc to begin the proceedings despite non-compliance with Ch 5 of the Civil Law (Wrongs) Act 2002. (2) Vacate the listing on 31 March 2025. (3) The defendant is to request further and better particulars of the plaintiff’s statement of claim by 28 March 2025. (4) The plaintiff is to answer the defendant’s request for further and better particulars by 11 April 2025. (5) The defendant is to file and serve their defence on or before 2 May 2025. (6) The plaintiff is to file and serve any reply on or before 16 May 2025. (7) The defendant is to file and serve any third party notices on or before 30 May 2025. (8) The parties are to serve any notice to disclose discoverable documents pursuant to r 607(1) on or before 6 June 2025. (9) The plaintiff is to serve the expert, liability, quantum, affidavit evidence on which they intend to rely on or before 6 June 2025. (10) Any party in receipt of a notice to disclose discoverable documents is to file and serve, pursuant to r 607(3) – its list of documents; an affidavit verifying the list; and if the party is represented by a solicitor – the solicitor’s certificate of advice in relation to the list on or before 4 July 2025. (11) Any party who wishes to inspect discoverable documents is to give notice pursuant to r 620(1) by 11 July 2025. (12) Any party who has received notice under r 620(1) is to produce for inspection the requested documents, other than documents specified in r 620(3), on or before 25 July 2025. (13) Any application for interrogatories is to be filed and served on or before 1 August 2025. (14) The defendant is to serve the expert, liability, quantum, affidavit evidence on which they intend to rely on or before 1 August 2025. (15) The plaintiff is to serve any expert, liability, quantum, affidavit evidence in reply on or before 15 August 2025. (16) The plaintiff is to file and serve its Statement of Particulars on 15 August 2025. (17) The matter is listed for directions at 11:30am on 25 August 2025 for listings hearing. (18) Liberty to re-list on 3 days’ notice.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: