Have you asked the right question before making a summary judgment application?05 October 2017
The decision of Barrett v Northern Territory of Australia  NTSC 70 has reaffirmed that the applicable principle when making a summary judgment application is whether there is a real or serious question to be tried on the available evidence. It also demonstrates a willingness by the courts to dismiss claims that don't meet this. The decision provides clarity on how case law applies in the context of Rule 23 of the Northern Territory Supreme Court Rules and other court rules across states and territories, including O16 of the Western Australian Supreme Court Rules.
The State made a summary judgment application against the Plaintiff Ms Barrett, who was claiming damages for injuries allegedly sustained as a result of the negligence of staff at Royal Darwin Hospital (RDH) when they failed to diagnose a left ankle ligamentous injury and appropriately treat an ankle sprain.
The Plaintiff attended RDH with a left ankle injury on 22 September 2012 and, following examination, her leg was immobilised and she was discharged with a subsequent review scheduled. She was later diagnosed with chronic regional pain syndrome on 5 December 2012 after numerous reviews and an MRI.
The Defendant's application was made on the basis there was no serious question to be tried on the available evidence and that there was insufficient evidence for the Plaintiff to establish breach of duty.
The evidence at hand
The Plaintiff had filed and served two reports by Professor Visser, a specialist pain medicine physician, and by Dr Saxby. On these reports, the Plaintiff argued it was open for the Supreme Court to find that the period of her immobilisation (exceeding three to four weeks) was inappropriate on the basis that it caused her chronic regional pain syndrome.
Dr Saxby reported the Plaintiff was initially assessed and treated appropriately by RDH for her severe ankle injury. He also repeatedly confirmed throughout his reports that he considered all the treatment up to 5 December 2012 to be appropriate.
While Professor Visser acknowledged that an ankle sprain alone or in combination with a period of immobilisation is a recognised cause of chronic regional pain syndrome, he said the Plaintiff had a typical presentation for chronic regional pain syndrome after an ankle injury. The Professor declined to express an opinion about whether the immobilisation of the Plaintiff's ankle caused or contributed to the chronic regional pain syndrome as he said it was beyond his expertise.
The Court did not find that the causal connection between the immobilisation and pain syndrome had been established, nor that Professor Visser's report advanced the Plaintiff's position.
The Defendant had not obtained any expert opinions as it did not consider there was any case to answer. The Court agreed with this assessment, relying on Nibbs v Australian Broadcasting Corporation  NTSC 52, which confirmed the test to be applied when deciding whether to give summary judgment was whether there is a real or serious question to be tried. It further relied on Outback Civil Pty Ltd v Francis  NTCA 3, where it was held that Rule 23.03 applies in instances where the Plaintiff's case is "so clearly untenable that it could not possibly succeed".
The Court ruled the Plaintiff's submissions were pure speculation and had no regard to the principles to be applied on the summary judgement application. The Court rejected all of the Plaintiff's submissions and agreed with the Defendant that there was no real or serious question to be tried on the available evidence.
While the Court did not grant the Plaintiff a further opportunity to provide supporting expert evidence, it did indicate that it would be prepared to hear further from the Plaintiff in the event that further evidence was obtained before publication of the decision. As no further evidence was provided and no further hearing requested, the Court dismissed the claim.