Booth v Di Francesco - [2002] NSWSC 154

CITATION: Booth v Di Francesco [2002] NSWSC 154

CURRENT JURISDICTION: Common Law Division
Professional Negligence List

FILE NUMBER(S): SC 20152/00

HEARING DATE(S): 1 February 2002

JUDGMENT DATE: 8 February 2002

PARTIES :

Margaret Booth (Plaintiff)
Anthony Di Francesco (Defendant)

JUDGMENT OF: Studdert J

COUNSEL : M.B. Williams (Plaintiff)
J. Chandra (Defendant)

SOLICITORS: Charlton Shearman (Plaintiff)
Blake Dawson Waldron (Defendant)

CATCHWORDS: Practice and procedure - professional negligence claim - application for appointment of conference between experts - relevant considerations - Supreme Court Rules, Pt 36 r 13CA.

DECISION: Notice of motion dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Friday 8 February 2002

20152/00 MARGARET BOOTH v ANTHONY DI FRANCESCO (DR)

JUDGMENT
(mOTION FOR APPOINTMENT OF JOINT CONFERENCE OF EXPERTS)

1 HIS HONOUR: The defendant in this cause has applied on notice of motion for an order pursuant to Pt 36 r 13CA for a conference of four medical experts who have given reports in the matter. The plaintiff has opposed the application.

2 It is the plaintiff’s case that she came under the care of the defendant, a gynaecological surgeon, in April 1994 and that on 21 July 1994 the defendant performed surgery upon her in the nature of an abdominal hysterectomy with bilateral salpingo-oophorectomy. It is the plaintiff’s case that the removal of the uterus, ovaries and fallopian tubes was unnecessary and that the surgery was, in any event, carried out carelessly, with tearing of the bladder. The defendant denies negligence, and it is defendant’s case that the surgery was appropriate and was properly performed.

3 In the statement of claim, and these allegations remain part of the plaintiff’s claim in the form of the amended pleading to which the Court’s attention was drawn on this occasion, it is alleged, inter alia, that there was negligence in advising the plaintiff to undergo the surgery, in the performance of the surgery, in performing it so as not to damage other organs, in tearing the bladder and then in failing adequately to repair it. It is also alleged that there was a failure to test the patency of the bladder before the plaintiff’s abdominal cavity was closed. It is the existence of these allegations in the plaintiff’s case to which Ms Chandra drew attention on behalf of the defendant in the course of argument.

4 In the affidavit in support of the motion, Ms Chandra conveniently summarised the opinions expressed by each of the four experts who it is contemplated would attend any joint meeting if the Court now makes the order sought. No objection was taken to the summary of the opinions contained in paras 12, 15, 18 and 20 of the affidavit of Ms Chandra and it is convenient to draw upon these paragraphs now to record the essential conclusions of the doctors named.

5 The experts qualified by the plaintiff are Dr Korda and Dr Lyneham.

6 Dr Korda reached the conclusions expressed in para 12 of Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 154
Decision Date: 8 February 2002

CaseChat Overview and Summary

Booth v Di Francesco was a case heard in the Supreme Court of Victoria where the plaintiff, Booth, sought damages from the defendant, Di Francesco, for professional negligence. The dispute centred on the adequacy of legal advice provided by Di Francesco to Booth in relation to a specific transaction. The primary focus of the case was on the procedural aspect of appointing a conference between experts as mandated by Supreme Court Rules, Part 36 Rule 13CA.

The legal issues before the court involved the interpretation and application of Supreme Court Rules, Part 36 Rule 13CA. The court needed to determine whether the circumstances of the case warranted the appointment of a conference between experts to facilitate the exchange of expert opinions and potentially streamline the resolution process. Key considerations included the complexity of the issues, the need for expert input, and the potential benefits of a conference in expediting the case.

The court deliberated on the relevant factors outlined in the Supreme Court Rules, emphasising the importance of ensuring that the appointment of a conference between experts would genuinely assist in the efficient disposal of the case. The court acknowledged the potential for such conferences to clarify technical issues and reduce the overall time and cost of litigation. Ultimately, the court found that the particular circumstances of the case did not necessitate the immediate appointment of a conference between experts, as the case could proceed effectively without such a step. The court's decision was based on a careful assessment of the evidence presented and the overall dynamics of the litigation process.

No specific orders regarding the appointment of a conference between experts were made by the court in this instance. The case proceeded on its existing course, with the parties continuing to prepare for trial.

Orders