Bailey v Illawarra Shoalhaven Local Area Health District

[2015] NSWSC 842

Supreme Court

New South Wales

Medium Neutral Citation:	Bailey v Illawarra Shoalhaven Local Area Health District [2015] NSWSC 842
Hearing dates:	26 June 2015
Date of orders:	29 June 2015
Decision date:	29 June 2015
Before:	Harrison J
Decision:	1. Dispense with conclave of experts on the issue of the defendant’s breach of duty. 2. Otherwise dismiss the motion. 3. Order that the costs of the motion be the plaintiff’s costs in the proceedings.
Catchwords:	PROFESSIONAL NEGLIGENCE – medical negligence – three separate proceedings brought and maintained by plaintiff – application for relief – entry of judgment sought on issue of breach of duty – issues of breach of duty and causation – matter for consideration by trial Judge
Legislation Cited:	Compensation to Relatives Act 1897
Category:	Procedural and other rulings
Parties:	Jennifer Bailey (Plaintiff) Illawarra Shoalhaven Local Area Health District (Defendant)
Representation:	Counsel: A J Bartley SC and R Ingram (Plaintiff) M Windsor SC and S Kettle (Defendant)   Solicitors: Slater & Gordon (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2011/11606, 2012/320101, 2012/339079
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Jennifer Bailey moves the Court for a series of orders in advance of the hearing, which is scheduled to commence on Tuesday 4 August 2015 with an estimate of three weeks. The several proceedings are concerned with what is alleged to be the negligent delivery of the plaintiff’s son Aaron Hoare in September 1984, as the result of which he sustained an antepartum hypoxic insult due to pre-eclampsia and consequent cerebral palsy.

2. There are three separate proceedings. The first was commenced in 2011 by Aaron Hoare claiming damages in his own behalf. He died on 5 August 2011. Those proceedings are now maintained by his mother as the administrator of his deceased estate. The other proceedings were commenced in 2012 by Jennifer Bailey claiming respectively damages pursuant to the Compensation to Relatives Act 1897 and damages for nervous shock consequent upon the death of her son. Every version of the statements of claim in all proceedings, including amendments, is less than a classic example of a proper pleading.

3. The issues of breach of duty and causation have prompted the present application for relief. The dispute may be shortly stated.

4. The deceased was delivered on 23 September 1984. The events that occurred at the Port Kembla Hospital and the Wollongong Hospital between 21 and 23 September 1984 are critical to understanding what was done and what was not done by attending medical staff during the immediate antenatal period and at the delivery. The plaintiff contends that the defendant’s defence as filed indicates that there is not, and cannot be, any dispute that the defendant breached its duty of care as pleaded in the latest version of her statement of claim. In particular, the plaintiff contends that, having regard to the absence of any expert opinion served by the defendant touching or concerning the critical events that took place on 21 September 1984, she should be entitled to judgment on the issue of breach of duty. On the plaintiff’s analysis, having regard to other admissions made by the defendant concerning allegations about its breaches on days apart from 21 September 1984, the defendant cannot resist the entry of judgment on the issue of breach of duty in all respects.

5. That contention arises in the following ways. Paragraphs 16 (c), (g) and (h) of the second further amended statement of claim are in these terms:

16(c) Failed to perform an emergency Caesarean section on 21 September 1984, 22 September 1984 or early 23 September 1984 given the abnormal CTG findings and the clinical situation.

16(g) Advising the plaintiff to have dinner and/or eat or drink at around 23 September 1984;

16(h) Delaying the Caesarean section in the contents [sic, context] of the plaintiff having a dinner at around 5pm on 23 September 1984 when in fact the Caesarean section was urgently required to be carried out.

6. The defendant’s responses to these particulars in its relevantly amended defence were as follows:

(c) admits that it failed to perform an emergency caesarean section on 22 September 1984 or early on 23 September 1984 but does not otherwise admit the balance of sub-paragraph (c);

(g) does not admit that it advised the plaintiff to have dinner and/or eat or drink at around 5.00pm on 23 September 1984;

(h) does not admit that the reason for the delay in caesarean section was due to the plaintiff having dinner at around 5.00pm on 23 September 1984.

7. The defendant has served only one report from a medical expert dealing with the question of the defendant’s breach of duty of care. That is a report from Dr Lyneham dated September 2011. In summary, Dr Lyneham expressed no relevant opinion concerning the plaintiff’s allegations of breach of duty arising out of events on 21 September 2011 as he was not provided with sufficient information in the form of hospital or clinical notes and records such as CTG tracings. However, after these records became available, the plaintiff’s experts reported on them in terms giving further support to the plaintiff’s case on breach of duty by the defendant on 21 September 2011 and rebutting the suggestion that the plaintiff’s eating or drinking activities were of any consequence.

8. The defendant has not provided a further report from Dr Lyneham or indeed any similar expert to accommodate the information revealed in these lately obtained records or the plaintiff’s expert reports dealing with them. Moreover, Mr Windsor SC for the defendant made it plain in court before me that the defendant neither intended to secure any further medical opinion on the issue nor did it even propose to have any expert attend on the defendant’s behalf at any conclave of experts dealing with the issue of breach of duty.

9. The plaintiff contends that in these circumstances the combined effect of the defendant’s admissions on the pleadings on the one hand and the patent absence of any chance of success on the allegations that it so far has not admitted on the other hand leads inexorably to the inevitable conclusion that she is entitled to judgment.

10. The defendant’s written submissions on this issue are in substance limited to the following contention:

“8. The defendant has admitted breach of duty in respect of failures to perform an emergency caesarean section on 22 September 1984 and 23 September 1984. There remains a contest as to whether it was negligent in failing to perform a caesarean section on Friday 21 September 1984. Even the obstetric consultant relied upon by the plaintiff for the purposes of this motion provides a confusing picture as to whether delivery should have occurred on 21 September 1984 and if it had in fact occurred then Aaron Hoare would have been born without injury.”

11. I accept that on one view of the matter there is considerable support for the plaintiff’s position. The defendant has admitted the bulk of the plaintiff’s allegations of breach of duty. It has chosen not to admit the balance. There is expert support for the plaintiff’s allegations of breach of duty but there is no relevantly countervailing expert opinion from the defendant.

12. However, there are two problems with the entry of judgment in the way sought by the plaintiff. First, the forensic analysis in support of the plaintiff’s case on breach of duty, although capable of concise description, will ultimately depend upon a factual examination of some little complexity. I accept that the evidence and expert opinion upon which it is based strongly suggests that the plaintiff has good prospects of establishing that the defendant failed in relevant respects as early as 21 September 1984 to deliver the child in a timely way. I have been provided with an extremely large amount of material said by the plaintiff to be relevant to my present determination. Without in terms descending into the detail of that material, it seems to me to be evidence that is, and which ought to be, left for consideration to the trial judge. This is so even though the costs associated with the proof of the plaintiff’s case on liability may on one view be unnecessarily incurred where the defendant continues to deny its liability in response to what the plaintiff maintains is a strong case and an inevitable outcome on this issue. That however remains to be seen. As I noted during the course of argument, this may well be a case in which the defendant admits breach of duty of care before the hearing commences. Whatever the case, the plaintiff is clearly well positioned, if ultimately successful, to claim her costs of this issue on an indemnity basis.

13. The second reason for my conclusion is that I am unable at this stage and at this remove from an evidentiary exposure of all issues in the case to determine whether or not or if so to what extent there may be some inter-relationship between an evidentiary inquiry into the question of breach of duty, whatever its outcome, and the determination of the outstanding question of causation. It is sufficient at this stage simply to observe that foreclosing upon the issue of breach of duty in a summary way may adversely affect a fair and proper examination of the cause of the plaintiff’s losses.

14. I do not consider that the entry of judgment for the plaintiff at this stage on this issue is warranted.

15. The plaintiff also moves the Court for an order that any expert conclave on the issue of breach of duty be dispensed with. At a fundamental level it seems to me that the concept of a conclave involves at the very least a meeting of experts for both sides of the relevant dispute. As the defendant has quite properly indicated that it has no expert upon whom it proposes to rely on the breach of duty issue, a conclave for this purpose would clearly be a hollow waste of time and money.

16. I consider that a conclave on the issue of the defendant’s breach of duty should be dispensed with.

17. The plaintiff next complains that a series of four statements provided only as recently as this week (commencing 22 June 2015) should be excluded. The plaintiff contends that there have been earlier orders for the provision of witness statements with which the defendant has not complied. An order by me effectively extending the time for the provision of statements was made recently and the statements appear to have arrived within the time limited by that order. The plaintiff, however, contends that the statements are from witnesses who the solicitors for the defendants had earlier indicated were either unavailable or could not readily be contacted. They are obviously now available. The plaintiff’s concern about the unexpected appearance of these statements is raised having regard to the obvious fact that the events that give rise to these proceedings are now over 30 years old.

18. Upon a cursory reading of the statements they do not appear to me to raise matters of any particular or substantial significance. Determination of that question must inevitably await the opinion of the trial judge. It also seems to me that it is unlikely that the late provision of these statements will produce any procedural prejudice for the plaintiff. I accept immediately that that question may not wholly dispose of the plaintiff’s objections but in the context of the proceedings as they are presently balanced it is a material consideration.

19. On balance I am not presently prepared to foreclose the defendant’s reliance upon the statements in question. The prospect that the trial judge may ultimately choose to reject them or any of them should abide the outcome of any application about it at the trial.

20. Finally the plaintiff asks for an order postponing the causation conclave until Monday in the second week of the hearing. I am disinclined to accede to this course. Whereas the conclave may theoretically be assisted by the evidence at the trial, that benefit is largely illusory if disputed questions of fact remain. It is not in my view fair to impose upon a trial judge the obligation to determine the facts hurriedly, particularly when all of the final issues in dispute may not have emerged in the time frame that is contemplated. The status of the defendant’s lately served statements may also have a bearing on those factual issues in a way that cannot presently be anticipated. More significantly, and on one view fundamentally, the proposal for a postponed conclave rather inverts the received wisdom for convening conclaves, which is to assist the Court in its deliberations rather than the other way round.

21. In the circumstances, with the exception of dispensing with the conclave of experts on the breach of duty issue, I propose to decline the plaintiff’s application for the orders or relief to which I have referred. Notwithstanding that conclusion, I consider that the costs of the motion should be the plaintiff’s costs in the proceedings.

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Decision last updated: 29 June 2015