Barker (Thomas) v Hodgkinson [2013] NSWSC 1404

Barker (Thomas) v Hodgkinson [2013] NSWSC 1404

The plaintiff failed to provide required expert evidence supporting a breach of duty by the defendant medical practitioner as required under r 31.36(1) of the Uniform Civil Procedure Rules; the only expert report submitted, from Dr Todman, did not establish that the defendant breached her duty of care under the applicable diagnostic criteria at the relevant time. As a result, the case cannot proceed and the Statement of Claim must be dismissed.

Parties
Plaintiff: Carol Barker (Thomas); Defendant: Suzanne Hodgkinson
Jurisdiction
Australia
Judgment Date
24 September 2013
Procedural Posture
Professional Negligence / Application to Dismiss Statement of Claim Under R31.36(3) UCPR
Outcome
Statement of Claim dismissed pursuant to Rule 31.36(3) UCPR.
Legal Topics
Professional Negligence, Medical Negligence, Expert Evidence Requirements, Dismissal for Non Compliance
Civil Procedure Tort Law Professional Negligence Medical Negligence Expert Evidence Requirements Dismissal for Non Compliance

Case Brief

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Parties

Carol Barker (Thomas)

Plaintiff

Suzanne Hodgkinson

Defendant

Procedural Posture

Professional Negligence / Application to Dismiss Statement of Claim Under R31.36(3) UCPR

Legal Issues

  1. 1 Whether the plaintiff filed compliant expert evidence supporting a breach of duty in her professional negligence claim against a medical practitioner
  2. 2 Whether failure to conduct additional tests constituted a breach of duty of care

Ratio Decidendi

The plaintiff failed to provide required expert evidence supporting a breach of duty by the defendant medical practitioner as required under r 31.36(1) of the Uniform Civil Procedure Rules; the only expert report submitted, from Dr Todman, did not establish that the defendant breached her duty of care under the applicable diagnostic criteria at the relevant time. As a result, the case cannot proceed and the Statement of Claim must be dismissed.

Court Disposition

Statement of Claim dismissed pursuant to Rule 31.36(3) UCPR.

Orders

  • Statement of Claim is dismissed pursuant to Rule 31.36(3) UCPR.
  • The plaintiff is to pay the defendant's costs of the motion.