Boden v Chen

[2013] WASC 308

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BODEN -v- CHEN [2013] WASC 308

CORAM:   McKECHNIE J

HEARD:   12 AUGUST 2013

DELIVERED          :   16 AUGUST 2013

FILE NO/S:   CIV 1722 of 2013

BETWEEN:   KAREN LOUISE BODEN

Plaintiff

AND

DEREK YI CHEN
First Defendant

MINISTER FOR HEALTH
Second Defendant

Catchwords:

Practice and procedure - Claim for negligence - Whether remittal to District Court appropriate

Legislation:

Nil

Result:

Action remitted to District Court

Category:    B

Representation:

Counsel:

Plaintiff:     Mr K Ryan

First Defendant             :     Mr A E Panetta

Second Defendant         :     Ms S Campbell

Solicitors:

Plaintiff:     GV Lawyers

First Defendant             :     Panetta McGrath Lawyers

Second Defendant         :     H W L Ebsworth

Case(s) referred to in judgment(s):

1. McKECHNIE J:  The plaintiff filed a writ on 3 May 2013 indorsed with a claim for damages for personal injuries sustained on 14 August 2010 at Royal Perth Hospital in the course of surgery to remove the plaintiff's gallbladder.  The writ was accompanied by a statement of claim.  The plaintiff alleges that following the operation, in the recovery ward, she immediately felt severe pain in her right shoulder, and further alleges this was as a result of negligence on the part of the first defendant, the surgeon, and/or the hospital.  Both defendants have entered an appearance and filed a defence.

2. At a status conference on 28 June 2013, the registrar raised the matter of the appropriate court.  Counsel for the plaintiff submitted that the action should remain in the Supreme Court.  Counsel for the defendants submitted, though not with particular passion, that the matter would be more appropriate in the District Court.  The matter was not resolved at the hearing but subsequently the registrar referred the issue to a judge for decision.

3. I convened a directions hearing for the parties to make submissions as to whether the action should be remitted to the District Court:  Supreme Court Act 1935 (WA) s 17.

The court's general policy

1. Claims for damages for personal injuries due to negligence are within the jurisdiction of the District Court:  District Court of Western Australia Act 1969 (WA) s 50. This does not mean that remitter of an action to the District Court will necessarily occur.

2. The court has long followed a policy of declining to exercise the power to remit certain classes of personal injury cases, especially those arising from alleged exposure to asbestos fibre.

3. At the general meeting of judges in 2012, the court extended the policy; that extension being made known to the profession by letter from the Chief Justice:

   After due consideration, it was resolved to extend the policy to which I have referred, by not exercising the power to remit in relation to claims for personal injury which give rise to particularly complex questions of fact or law, of the kind that commonly arise in medical negligence claims.  Accordingly, if claims of that description are commenced in the Supreme Court, practitioners can reasonably expect that the power to remit those claims to the District Court will not be exercised, and that the cases will be managed in the commercial and managed cases list.

   The Judges did not consider that the mere quantum of the claim, of itself, would ordinarily be sufficient to justify a claim remaining in the Supreme Court.  As I have indicated, the criterion to be adopted will be that of unusual complexity of fact or law, of the kind that commonly arises in medical negligence claims.  Nor is this to say that the policy will be applied only to medical negligence claims - merely that claims of that kind provide a convenient example of the types of cases that are likely to fall within the new policy.

The issues in the action

1. The plaintiff has not applied to have the action admitted to the CMC list.

2. The pleadings do not disclose any particular complexity or difficulty of fact or law such as to make the Supreme Court the appropriate venue.

3. Counsel for the plaintiff, in submissions, described the issues on a number of occasions as complex.  In particular, he pointed to two matters. 

4. The first is radiological evidence resulting in a film of the plaintiff's shoulder.  The interpretation of this film by medical experts is in dispute.  The plaintiff's expert believes that the injury is a fresh injury while the defendants assert that it is a recurrent or chronic injury.

5. Counsel for the plaintiff indicated it may be that the court has to appoint an independent expert.  I make no comment on the success of an application if made, but observe that such a course would not principally involve a judge in the resolution of the issue.

6. The other major issue identified by counsel for the plaintiff is whether or not the plaintiff was moved during the operation.  The plaintiff will rely on the doctrine of res ipsa loquitur asserting a necessary inference is that the plaintiff was moved during surgery.  It will be argued that the operation was more difficult than originally thought due to the size of the plaintiff's liver and two further incisions were made beyond those which the first defendant indicated pre‑operation would be required.  The extra incisions necessarily involved physical movement.

7. The defendants deny that the plaintiff was moved during surgery.  They plead that the first defendant did not and did not need to move the plaintiff around in the operation.  All incisions were made on her exposed anterior abdominal wall.

8. This is a factual issue to be determined but of itself is not complex.  Nor does it involve difficult questions of medical procedure.

9. As to quantum, the plaintiff is now unemployed.  She is aged 45 and if she suffers a substantial drop in her earnings counsel asserts her claim should exceed a million dollars.

10. Assuming the plaintiff is successful, the issue will be to what extent the injury has temporarily or permanently affected her earning capacity.  After that decision is made, the resulting answer may be more a matter of arithmetic.

11. Mr Panetta, for the first defendant, and Ms Campbell, for the second defendant, both are of the view that this is an ordinary medical negligence action routinely dealt with in the District Court.  As in many of these matters, there is a difference of medical opinion and a question of fact to resolve.

Disposition

1. The District Court has a full complement of judges.  The District Court has expertise in actions for personal injury and also experience in actions for alleged medical negligence.  The Supreme Court has been operating below strength for more than a year.  This has placed significant pressure on the work of the court.

2. The policy change outlined by the Chief Justice is important and represents a significant change.  The profession can reasonably expect that policy will be followed in cases that appear to fall within its terms.  There will be no automatic remitter of actions to the District Court simply because of concurrent jurisdiction. 

3. However, two more things may be said.  The first is that the decision to retain an action in the Supreme Court depends upon an assessment that the matter has some feature of complexity or difficulty which makes it appropriate.  Commonly medical negligence cases will be retained but not always.  The present action has no features of complexity or difficulty.

4. Secondly, although the policy is important, it informs but does not bind the exercise of judicial discretion in a particular case.

5. I order that the action be remitted to the District Court.  The costs of the appearance on 12 August 2013 be costs in the cause.