Chatfield v Australian Capital Territory

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Chatfield v Australian Capital Territory

Citation:

[2022] ACTSC 357

Hearing Date:

19 August 2022

DecisionDate:

19 December 2022

Before:

McCallum CJ

Decision:

Reject the defendants’ application to have the plaintiff submit to further neurocognitive assessment between March and May 2023.

Catchwords:

TORTS — NEGLIGENCE — Claim for injury allegedly suffered during birth — Where neuropsychological testing revealed deficit in plaintiff’s executive level functioning at 9 years of age — Dispute as to whether plaintiff should be directed to undergo further assessment one year later or whether further assessment should be postponed until early adolescence — Consideration of competing interests of justice

Legislation Cited:

Court Procedures Act 2004 (ACT), s 5A

Cases Cited:

Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72

Parties:

Kidada Mabel Chatfield by her litigation guardian Crystal Marie Lowe ( Plaintiff)

Australian Capital Territory ( First Defendant)

Khushbir Johar (Second Defendant)

Representation:

Counsel

L Whalan SC with B Jullienne ( Plaintiff)

V Thomas ( First Defendant)

Solicitors

Blumers Personal Injury Lawyers ( Plaintiff)

ACT Government Solicitor ( First Defendant)

File Number:

SC 308 of 2019

McCallum CJ:

1․These are proceedings for medical negligence commenced by the plaintiff’s litigation guardian on her behalf against the Australian Capital Territory and a doctor in relation to injuries she allegedly suffered following her birth at Canberra Hospital.  The matter was initially set down for hearing commencing on 21 November 2022.  However, that date was vacated by consent on the application of the plaintiff.  The basis for the application to vacate the hearing was that neuropsychological testing of the plaintiff had identified a deficit in her executive level functioning that cannot be fully explored now, while she is only nine years of age. 

2․While the parties were agreed that the hearing date should be vacated for that reason, there remains a dispute as to when and how the plaintiff’s neurocognition should be assessed in the future.

3․The negligence alleged against the defendants is failure to take certain measures to monitor the mother’s pregnancy and prevent harm occurring during the plaintiff’s birth.  The hospital admits breach of duty in the failure to diagnose gestational diabetes in the mother and a macrosomic pregnancy (where the unborn child grows beyond a specified threshold).  The hospital also admits that, as a result of this failure, the plaintiff weighed 1.5 kilograms more than the 90^th percentile of newborn children, causing her to experience shoulder dystocia with a delay of three minutes between the delivery of her head and the delivery of her shoulders.  The hospital further admits that this caused the plaintiff to suffer from Erb’s palsy (an injury affecting the arm).  It is anticipated that the principal issue in the proceedings will be whether the plaintiff suffered any neurological injury as a result of the hospital’s admitted negligence.  The hospital denies the plaintiff’s claim that she suffered Hypoxic Ischaemic Encephalopathy (a form of brain damage) following her birth.

4․The parties have qualified a…