Brook v Sommerville - [2018] NSWSC 237

Supreme Court

New South Wales

Medium Neutral Citation: Brook v Sommerville [2018] NSWSC 237
Hearing dates: 15 February 2018
Date of orders: 02 March 2018
Decision date: 02 March 2018
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Notice of Motion of second defendant filed 23 November 2017 dismissed.
(2)   Notice of Motion of the plaintiff filed 29 January 2018 dismissed.
(3)   Second defendant to pay the costs of the Notice of Motion filed 23 November 2017 for transfer.
(4)   All parties to pay his, her and its own costs of the plaintiff’s Notice of Motion.
(5)   Stand the proceedings over for directions before the Common Law Registrar at 9am on 9 March 2018.

Catchwords: CIVIL PROCEDURE — medical negligence claim — motion for transfer of proceedings — Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2)(b)(iii) —motion for expedition of proceedings — motion for change of venue — interests of justice — motions dismissed
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Liability Act 2003 (Qld)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bankinvest AG v Seabrook (1998) 14 NSWLR 711
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Hamilton v Merck & Co Inc; Hutchinson v Merck Sharp & Dohme (Australia) Pty Ltd [2006] NSWCA 55; (2006) 66 NSWLR 48
Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [2018] NSWSC 51
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Christine Brook (P)
Scott Somerville (D1)
Jonathon Christie (D2)
The Wesley Hospital (D3)
Representation:
Counsel:
P Beale / J Doyon (P)
L Heather (D1)
C P O’Neill (D2)
S Lark (D3)
Solicitors:
CMC Lawyers (P)
Meridian Lawyers (D1)
HWL Ebsworth (D2)
Minter Ellison (D3)

File Number(s): 2017/255687
Publication restriction: Not Applicable

Judgment

On 22 August 2017, Dr Christine Brook, the plaintiff, brought proceedings claiming damages for personal injury as a consequence of the negligence of three defendants.
The plaintiff’s claim for damages arose out of a routine total knee replacement operation conducted on 30 September 2015 by the first defendant, at the Wesley Hospital in Queensland, which is the third defendant. The second defendant, Dr Jonathon Christie, was the anaesthetist who participated in the operative procedure – including being responsible for the post-operative care orders.
The plaintiff’s claim is that about 5½ hours post-operatively, she suffered a cardio-respiratory arrest with a significant deprivation of oxygen. This oxygen deprivation has resulted in an acquired brain injury of the fronto-parietal lobes bilaterally, and in the left parieto-occipital lobe, which has resulted in multiple impairments including loss of short term memory, aphasia and loss of executive function.
The allegations of negligence centre upon the post-operative care orders which were or ought to have been given by the second defendant anaesthetist and which were or ought to have been carried into effect by the nursing staff of the third defendant hospital. Central to these…

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.

Continue reading Brook v Sommerville

Details

AGLC: Brook v Sommerville [2018] NSWSC 237
Case: [2018] NSWSC 237
Decision Date: 02 March 2018

CaseChat Overview and Summary

The matter of Brook v Sommerville was heard in the Supreme Court of New South Wales. The plaintiff, Brook, sought to pursue a medical negligence claim against the defendant, Sommerville. The crux of the dispute was the appropriate forum for the proceedings, and whether the case should be transferred, expedited, or moved to a different venue. The jurisdictional question hinged on section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which deals with the transfer of proceedings. Additionally, the plaintiff made a motion for the proceedings to be expedited and for a change of venue, arguing that it was in the interests of justice to do so.

The legal issues the court needed to address included whether the motion for transfer was justified under the relevant statutory provisions, whether the case warranted expedition, and if a change of venue was warranted in the interests of justice. The court needed to carefully weigh the statutory criteria against the principles of procedural fairness and efficiency. The defendant argued against the transfer, expedition, and change of venue, maintaining that the existing arrangements were appropriate. The court considered the arguments from both parties and the relevant legal frameworks.

In its decision, the court dismissed all three motions. The court found that the statutory criteria for a transfer of proceedings were not met, as the requirements of section 5(2)(b)(iii) were not satisfied. The court also determined that there were no compelling reasons to expedite the proceedings or change the venue, as doing so would not serve the interests of justice. The court held that the existing arrangements were suitable for the fair and efficient resolution of the case. As a result, the motions for transfer, expedition, and change of venue were dismissed.

Orders