Chatfield v Australian Capital Territory

[2022] ACTSC 357

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 number of experts to address the issue of the plaintiff’s neurocognitive functioning.  The reports of those experts identify a dispute as to whether the Court can assess the extent, if any, of the damage to the plaintiff’s neurocognition at this stage of her life.  The parties do, however, agree that, to the extent that future neuropsychological testing is necessary, it should be infrequent because of the need to avoid “practice effect” (a reduction in the accuracy of testing caused by repetition of assessments which enables subjects to demonstrate improved performance as a result of recollection acquired from having undertaken similar testing previously).

5․The plaintiff submits, on the basis of the expert evidence, that she should not be assessed until she reaches adolescence, when any deficits in her executive level functioning are likely to be more pronounced.  Accordingly, she proposes that she be assessed in 2026 when she has attained the age of 13 years and completed year 7 of her schooling. 

6․The hospital submits that the Court should not delay assessment until the plaintiff’s adolescence in the absence of evidence demonstrating that the injury has not already sufficiently stabilised.  The hospital contends that the Court does not require perfect evidence in order to make a proper assessment of future damages and that it is within the Court’s capacity to make determinations in cases such as the present.  The hospital proposes that the plaintiff be assessed between March and May 2023 (one year after her most recent neurological assessment to mitigate the practice effect).  It is submitted that the Court would then consider the results of that examination to determine whether to proceed with the hearing at the plaintiff’s current age or stand the matter over until 2026 for further testing to be conducted.

7․Based on my review of the expert reports, I am satisfied that there is a cogent basis for apprehending that the plaintiff has some neurocognitive impairment the assessment of which is best left until she reaches adolescence.  It is recognised that the task of awarding damages to make good to the plaintiff the loss suffered is never exact.  The Court is obliged to do the best it can on the evidence available at the time that determination falls to be made and must, to an extent, engage in a task of “prophesying”: Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 at [7] (Gibbs CJ and Wilson J). In accordance with the dictates of s 5A of the Court Procedures Act 2004 (ACT), the efficient determination of matters brought before the Court will not ordinarily be held ransom to endless changes and developments in a plaintiff’s medical condition.

8․However, as noted in Todorovic v Waller at [6], another fundamental principle in the assessment of damages is that damages must be recovered “once and forever”. It follows that there will be cases in which the dictates of justice militate in favour of deferring the assessment of damages until a plaintiff’s injuries have settled. It is well recognised that, in the case of an injured child, the prospective assessment of damages is often more uncertain, warranting greater delay than would ordinarily be countenanced in the case of an adult plaintiff. The Court must be astute in such a case not to permit considerations of case management to swallow the interests of justice, particularly in the face of cogent multidisciplinary expert evidence warning against a premature determination. I am satisfied that this is a case in which it is appropriate to accede to the opinion of the plaintiff’s experts and to postpone further neurocognitive assessment until the plaintiff attains adolescence in 2026.

9․The evidence that has led me to this conclusion is as follows.  First, there is a report dated 10 January 2022 prepared by Louise Parry, a neuropsychologist, following telehealth assessments of the plaintiff conducted in November 2021.  This report identifies a possible vulnerability in the plaintiff’s executive functioning, which Ms Parry describes as a skill-set that “continues to develop throughout the childhood and adolescence phase and into early adulthood”.  Ms Parry recommends that, in order to obtain a clear understanding of the plaintiff’s cognitive and executive development, a further neuropsychological review should be undertaken at around the time of transition to high school. 

10․Ms Parry’s opinion is supported by the report of Dr Peter Flett, a consultant physician in rehabilitation medicine, dated 6 May 2021 which followed his examination of the plaintiff on 3 May 2021.  Dr Flett observed:

It is also well known in children generally after brain injury that any weakness in executive skills is likely to become more apparent with development towards or during adolescence. Thus, it would be my opinion that [the plaintiff]’s neuropsychological examination should be repeated in early adolescence with particular attention to frontal lobe functioning including executive skills.

11․The appropriateness of deferring further testing until the plaintiff’s adolescence is further supported by the supplementary report of Dr Michael Harbord, a paediatric neurologist, dated 11 August 2022.  Dr Harbord wrote an initial report on 27 January 2021 which followed consultations with the plaintiff on 29 September 2015 and 19 January 2021.  In his supplementary report, Dr Harbord noted that, when Ms Parry did her assessment, the plaintiff:

… was only just old enough to have executive functioning tested, which is a marker for frontal lobe integrity. From eight years of age there continues to be significant progression in the functioning of the frontal lobe, and this therefore is not likely to be adequately assessed until adolescence.

12․Those are cogent recommendations by experts across different disciplines.  In addition, a report by an expert retained by the first defendant, Dr Fernando Roldan, also alludes to the possibility that the plaintiff’s neurocognitive idiosyncrasies may change as she ages.  In his report dated 19 April 2022, Dr Roldan notes that the contrast between the plaintiff’s relatively poor numerical skills and well-developed literary skills “cannot be necessarily explained in terms of the subject medical events, and may dissipate with the passage of time and further experience in the educational system”. 

13․While Dr Roldan concludes that he could find no evidence of residual brain trauma or impairment in cognitive functioning, the reference to the possibility of the plaintiff’s neurocognitive capacities shifting over time reinforces the proposition supported by the other reports that accurate assessment of the existence and extent of the plaintiff’s injuries is not currently possible.

14․There is a separate issue as to who should conduct the further testing.  The parties submitted that it would be preferable for any future testing to be performed by a jointly retained expert so that, if the need for multiple assessments arises in the future, the same methodology can be employed.  The hospital proposed that the expert should be Professor Vicki Anderson, a paediatric neuropsychologist.  At the time of the hearing, the plaintiff did not have instructions on that issue.  In light of my conclusion as to the timing of the assessment, it is appropriate to hear the parties further on that issue. 

15․The hospital also handed up proposed orders, on the assumption that Professor Anderson would be appointed to examine the plaintiff in 2023, contemplating that the plaintiff have leave to serve any further report of Dr Flett and that the hospital have leave to serve a report from a rehabilitation physician within eight weeks of the receipt of the report of Professor Anderson.  The parties may also wish to revisit those proposed directions in light of this ruling. 

16․In the circumstances, it is appropriate to reserve the right of the parties to be heard as to the orders to be entered in accordance with these reasons.  For those reasons, I make the following orders:

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

(2)  Direct the parties to propose further directions in accordance with these reasons by email to my associate on or before 30 January 2023.

(3)  Stand the proceedings over for directions at 9am on 2 February 2023.

(4)  Note that, if the further directions provided in accordance with order (1) are agreed between the parties, the directions will be made in chambers and the listing on 2 February 2023 will be vacated.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate: Grace Hartley

Date: 19 December 2022