Barker (Thomas) v Hodgkinson [2013] NSWSC 1404

Supreme Court New South Wales

Medium Neutral Citation: Barker (Thomas) v Hodgkinson [2013] NSWSC 1404 Hearing dates: 6 September 2013 Decision date: 24 September 2013 Before: Barr AJ Decision: 1.Pursuant to R 31.36(3) UCPR the Statement of Claim is dismissed. 2.The plaintiff is to pay the defendant's costs of the motion. Catchwords: CIVIL- professional negligence- damages- breach of duty of care- Legislation Cited: Uniform Civil Procedure Rules Cases Cited: Salzke v Khoury [2009] NSWCA 195; (2009) 74 NSWLR 580 Category: Principal judgment Parties: Carol Barker (Thomas) (Plaintiff) Suzanne Hodgkinson (Defendant) Representation: Counsel: M Bennett (Defendant) Solicitors: Plaintiff in person Avant Law (Defendant) File Number(s): 2011/359579 Publication restriction: None

Judgment 1The plaintiff, Carol Barker (Thomas) sues the defendant, Suzanne Hodgkinson, for damages for professional negligence. By her Notice filed on 29 April 2013 the defendant moves the Court for an order dismissing the proceedings under the provisions under R31.36 (3) Uniform Civil Procedure Rules (the Rules). 2The plaintiff appears never to have been represented by a legal practitioner. She commenced her action by her Statement of Claim filed on 10 November 2011. It is in handwriting and sets out her claim in a conversational way. It does not always comply with the Rules. However, her case appears to be that she consulted the defendant, a medical practitioner. In 1999 the defendant diagnosed the plaintiff's condition as probable multiple sclerosis. The plaintiff accepted that opinion. Some time later, having given birth to a child, the plaintiff again consulted the defendant, who advised her that any further pregnancy would assist in helping her multiple sclerosis in that the multiple sclerosis "would likely stay relapsing, remitting and that each pregnancy whether a pregnancy that is viable or not would stop my multiple sclerosis from becoming progressive". In 2004 the plaintiff saw the defendant "for further follow up" and the defendant advised her that she was still of the belief that she had multiple sclerosis. 3The plaintiff gave birth to five more children. In 2009, following a miscarriage, she sought medical advice and was referred to a neurologist for tests. She discovered that she did not have and had never had multiple sclerosis. 4The plaintiff asserts that in 1999 there were "set criteria" for the diagnosis of multiple sclerosis. The defendant failed to follow those criteria and diagnosed probable multiple sclerosis "without being able to identify that I actually had it". The defendant thereby breached her duty of care. 5The plaintiff claims that the defendant's misdiagnosis had severe consequences. It triggered and exacerbated an obsessive-compulsive disorder. The plaintiff went through five painful pregnancies and is faced with the strain and expense of raising her children, two of whom are autistic. She is anaemic and is deficient in vitamin B12, conditions exacerbated by her pregnancies. She has suffered economic loss. She has lost the opportunity to follow a career in medicine.