Bradshaw v Truscott

[2013] NSWSC 797

Supreme Court

New South Wales

Medium Neutral Citation:

Bradshaw v Truscott [2013] NSWSC 797

Hearing dates:

17 June 2013

Decision date:

17 June 2013

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. The name of the defendant is changed to Elaine Truscott.

2. Leave is granted to file the summons in Court.

3. The summons is heard forthwith.

4. The defendant is to cease hearing the coronial enquiry in this matter pending further order of the Court.

5. The summons is adjourned to 10.00 am Thursday 20 June 2013 for further hearing before me.

6. A copy of the summons as amended together with the orders of the Court are to be served on the defendant by 10.00 am 18 June 2013.

7. Liberty to the parties to apply on twenty-four hours notice.

Legislation Cited:

Coroners Act 2009

Category:

Interlocutory applications

Parties:

Annette Bradshaw (Plaintiff)
Elaine Truscott (Defendant)

Representation:

Counsel:
Solicitors:
R Macredie (Plaintiff)

File Number(s):

2013/184858

Ex TEMPORE Judgment

1. Rebecca Rose Bradshaw, whilst in the care of the State, committed suicide by hanging on 29 May 2009. Her life-support was switched off on 1 June 2009. Plainly, a hearing under the Coroners Act 2009 is required. That has been long delayed for a number of reasons, the most significant of which appear to be caused by the difficulty that Rebecca's family have had in obtaining relevant medical records from those persons having something to do with Rebecca's care, and also the problems of obtaining independent medical opinions about the appropriateness of that care. It appears, on the face of it, that it will be necessary for the Coroner, in order to discharge the functions prescribed in s 10 of the Act, including the proper investigation of Rebecca's death, to inquire into the likelihood that her death was iatrogenic, namely resulting from the medical care to which she was subjected.

1. When the Coroner's hearing commenced today, an application was made by Ms Macredie, the solicitor acting for the Bradshaw family, for an adjournment to permit her to consult medical experts able to instruct her as to appropriate questioning of the relevant witnesses proposed to be called, and also to give evidence. This issue had been foreshadowed but the adjournment was refused. Ms Macredie has been attempting to obtain documents relating to Rebecca's treatment and care for a considerable period. That information is essential to the obtaining of independent medical opinions as to Rebecca's condition and the extent, if any, to which her care caused or contributed to her suicide. The Bradshaw family have had to bear their own very substantial costs, including the expense of identifying and conferring with independent medical experts, and have only been able to carry this matter because of the assistance of various charitable organisations. (Although I am informed that Legal Aid has been approved, it was limited to in-house assistance, whereas the family wished to continue, for perfectly understandable reasons, with Ms Macredie, whose fees, however, Legal Aid declined to agree to pay.)

1. Although strictly not material, I mention this history to explain why the family has had difficulties with the timely identification of independent medical witnesses and providing them with the extensive relevant material which is necessary for those witnesses to consider for the purpose of giving useful opinions.

1. I am satisfied on the basis of the affidavit of Ms Macredie (although of course it has not been tested and there is no adversary), that there were good reasons for seeking the adjournment to which I have referred. I am informed from the bar table, and I accept, that essentially the reason for refusing the application was the administrative arrangements of the Coroner's Court, although I accept also that the adjournment may well have inconvenienced some witnesses. So far as those witnesses are concerned, however, unless someone in the position of Ms Macredie is able to cross examine them, in an informed way, the investigation which the Coroner is obliged to undertake, will, or at least may, be significantly handicapped.

1. It need hardly be said that the treatment of children in state institutions is of high public importance and raises questions far more significant than those concerning any particular patient. The importance of thorough investigation of a death in those circumstances is independent of, though connected to, understandable personal significance the tragedy has for the family members of the deceased.

1. I am in the difficult position of hearing only one side of this application, but the affidavit I have strikes me as comprehensive, and it is put forward by a responsible legal practitioner. It seems to me that it provides a proper prima facie foundation for granting the relief sought on an interim basis.

1. As I have mentioned, the Coroner's hearing commenced today and is scheduled to continue until 21 June next.

1. The Court makes the following orders -

(1)   The name of the defendant is changed to Elaine Truscott.

(2)   Leave is granted to file the summons in Court.

(3)   The summons is heard forthwith.

(4)   The defendant is to cease hearing the coronial enquiry in this matter pending further order of the Court.

(5)   The summons is adjourned to 10.00 am Thursday 20 June 2013 for further hearing before me.

(6)   A copy of the summons as amended together with the orders of the Court are to be served on the defendant by 10.00 am 18 June 2013.

(7)   Liberty to the parties to apply on twenty-four hours notice.

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Decision last updated: 18 June 2013