Primary Claim relates to alleged negligence in the Medical Care Sector

  • 6 Apr 2016

This Supreme Court decision relates to an application for leave to file and serve a Further Amended Statement of Claim by a self represented litigant. The defendants opposed the application.

The plaintiff’s primary claim relates to alleged negligence in the medical care given to his late father in 2010. The matter has a noteworthy litigation history. The proceedings were initially dismissed by the Supreme Court in 2013 on the basis that that plaintiff’s claim had not been properly pleaded, did not disclose a reasonable cause of action and represented an abuse of the Court’s process. This decision was appealed by the plaintiff and in November 2015, the Court of Appeal allowed the plaintiff’s appeal. Although it was accepted that there were serious defects in the pleadings, the Court of Appeal found that the plaintiff should have been given an opportunity to re-plead his claim. The appeal was however allowed on the basis that the plaintiff comply with a series of directions in relation to preparing his case.

Firstly the Court ordered the plaintiff to properly name the defendants in the pleading; and secondly, that the plaintiff file an expert report with his proposed pleadings, from a suitably qualified expert in relation to a number of specific matters set out by the Court. The plaintiff’s application to seek leave to file the Further Amended Statement of Claim was subsequently heard on 30 March 2016.

His Honour found that the plaintiff had failed to comply with the orders of the Court of Appeal and that compliance with the Court’s orders were a necessary preliminary step in pursuing his claim. In essence, the plaintiff’s Further Amended Statement of Claim was in the same terms as his earlier claim, a claim previously struck out. His Honour also found that no proper medical evidence had been obtained to establish any legitimate cause of action. As a result leave to file the Further Amended Statement of Claim was refused and the plaintiff was ordered to pay the defendants’ costs of the motion, on an ordinary basis.

At the motion the plaintiff also sought orders in relation to the exercise of the function of the Office of the Coroner. Namely, he sought an order to direct the NSW Coroner to investigate the death of his late father so that he could rely on any expert evidence obtained in his own proceedings. Wilson J held that, “even were there some evidentiary basis for an order of the nature requested by the plaintiff… I am not aware of any power this Court may have in the context of this matter to make it”.

Post by Emma Ellis and Karen Kumar 

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