Netherwood v Hillier [2023] NSWSC 937

Netherwood v Hillier [2023] NSWSC 937

The proceedings against the third defendant were dismissed because the plaintiff had never served an expert report expressing an opinion that the third defendant's performance of the spinal fusion operation, including the placement of the left L5 pedicle screw, fell below the applicable standard of care for a fourth-year orthopaedic registrar. Descriptions of the screw as misaligned or misplaced did not amount to an opinion of negligence. The non-compliance with r 31.36 had persisted throughout the proceedings and for months after explicit notice of the defect, and there was no justification for allowing further time to attempt to cure it.

Jurisdiction
Australia
Judgment Date
10 August 2023
Procedural Posture
Professional Negligence Proceedings / Third Defendant's Notice of Motion Seeking Dismissal or Strike Out of Proceedings as Against Him
Outcome
Proceedings dismissed as against the third defendant, with costs orders made.
Legal Topics
['expert Reports in Professional Negligence Claims' 'dismissal for Non Compliance With R 31.36 of the Uniform Civil Procedure Rules 2005 (nsw)' 'alleged Negligent Performance of Spinal Fusion Surgery' 'pedicle Screw Malposition']
['civil Procedure' 'professional Negligence' 'medical Negligence'] ['expert Reports in Professional Negligence Claims' 'dismissal for Non Compliance With R 31.36 of the Uniform Civil Procedure Rules 2005 (nsw)' 'alleged Negligent Performance of Spinal Fusion Surgery' 'pedicle Screw Malposition']

Case Brief

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Procedural Posture

Professional Negligence Proceedings / Third Defendant's Notice of Motion Seeking Dismissal or Strike Out of Proceedings as Against Him

Legal Issues

  1. 1 ['Whether the plaintiff had complied with r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) by filing and serving an expert report supporting breach of duty against the third defendant.' 'Whether the expert reports describing malposition or misalignment of the left L5 pedicle screw amounted to expert opinion that the third defendant performed the surgery negligently.' 'Whether the Court should dismiss the proceedings against the third defendant under r 31.36(3) rather than allow further time for the plaintiff to obtain supporting expert evidence.']

Ratio Decidendi

The proceedings against the third defendant were dismissed because the plaintiff had never served an expert report expressing an opinion that the third defendant's performance of the spinal fusion operation, including the placement of the left L5 pedicle screw, fell below the applicable standard of care for a fourth-year orthopaedic registrar. Descriptions of the screw as misaligned or misplaced did not amount to an opinion of negligence. The non-compliance with r 31.36 had persisted throughout the proceedings and for months after explicit notice of the defect, and there was no justification for allowing further time to attempt to cure it.

Court Disposition

Proceedings dismissed as against the third defendant, with costs orders made.

Orders

  • ['The proceedings under the statement of claim are dismissed as against the third defendant.' "The plaintiff is to pay the third defendant's costs of the proceedings." 'Stand the proceedings over to 17 August 2023 before the Registrar.' 'The costs of the first and second defendants on the notice of motion brought by...