Coffey v Murrumbidgee Local Health District
[2017] NSWSC 1544
•14 November 2017
Supreme Court
New South Wales
Medium Neutral Citation: Coffey v Murrumbidgee Local Health District [2017] NSWSC 1544 Hearing dates: 14 November 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) Vacate the hearing fixed for 20 November 2017.
(2) Fix the matter for hearing for a period of four weeks, commencing 5 November 2018.
(3) Liberty to apply, having checked with various experts about availability.
(4) Each party pay his, her and its own costs thrown away by reason of the vacation of the hearing date of 20 November 2017.
(5) Stand the proceedings over for directions to 9.30am on 20 November 2017 before me.Catchwords: CIVIL PROCEDURE – late adjournment – appropriate having regard to particular circumstances – no point of principle Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: James Phillip Coffey (P) (2011/208788)
Kathleen Amanda Coffey (P) (2011/110488)
Murrumbidgee Local Health District (D) (both matters)Representation: Counsel:
Solicitors:
A Bartley SC / J A Hillier (P) (both matters)
R Cheney SC / J Downing (D) (both matters)
Curwoods (P)
Commins Hendriks Pty Ltd (D)
File Number(s): 2011/108788 (James Coffey)2011/110488 (Kathleen Coffey) Publication restriction: Not Applicable
EX TEMPORE Judgment
-
These matters have been listed before me today for case management. Both claims, that is, by James Coffey and by his mother Kathleen, are listed for hearing for a 10-day period to commence on 20 November 2017. The proceedings were previously listed for a hearing in October 2015, but were adjourned because they were not ready.
-
The cause of action arises out of the circumstances shortly prior to, and immediately after, the birth of James Coffey in January 2004 at the Wagga Wagga Base Hospital. The plaintiff, James, presently suffers from an intellectual disability which has resulted in a significant loss of functional capacity.
-
In very general terms, the plaintiff's case is that, having regard to his mother's obstetric history, in the period between 4 January 2004 and the following few weeks when his mother first attended at Wagga Wagga Hospital, she should have been immediately transferred to a tertiary referral hospital in Canberra.
-
The purpose of such transfer would have been to make available to the plaintiff and his mother the services of a highly skilled multi-disciplinary team whose object would have been to have extended the period during which the plaintiff remained in utero. As well, the plaintiff alleged that he ought to have been administered a corticosteroid, namely Celestone, to guard against and prevent the development of hyaline-membrane disease occurring at birth. Complaint was also made about the extended period during which intubation occurred, postnatally.
-
Although the plaintiff claimed that all, or any, of these events, singly or in combination, caused his present intellectual disability, the defendant does not accept that.
-
First, the defendant says that the plaintiff's mother was properly treated at the Wagga Wagga Hospital; secondly, that the administration of corticosteroid was not required as a matter of reasonable obstetric practice; thirdly, putting it generally again, that the outcome of the plaintiff's birth would have been the same whether he was born in Wagga Wagga or in Canberra. The defendant also raised an allegation that the real cause of the plaintiff's current disability is genetic and not the conduct of the hospital or its staff.
-
It is fair to say, without exploring any of the reasons leading to the current situation that, for a number of reasons, the proceedings if commenced on 20 November 2017, would not be completed during the allocated period.
-
First, the plaintiff is yet to retain and obtain an expert's report from three different specialities with respect to the question of whether the genetic make‑up of the plaintiff was the causative factor for his current disability. It is anticipated that, by the time those reports are obtained and the defendant has had an opportunity to respond, at least six months will have passed.
-
Secondly, the plaintiff has only recently retained and served an expert obstetric report from Associate Professor Bryce, who has directed, amongst other things, his opinion to the question of the administration of Celestone on up to three occasions. The defendant has not responded by expert evidence to that issue.
-
Thirdly, one of the defendant's principal obstetric experts is due to undergo open-heart surgery in the week commencing 27 November 2017, and, accordingly, has very limited ability to give evidence, whether singly or concurrently. It is doubtful, having regard to the programme of evidence, whether the factual evidence would be concluded in time to enable him to give his evidence prior to having to undergo surgery. He will not be available to give evidence before May 2018.
-
Some other factors are also concerning. The plaintiff has listed a series of witnesses whom it is presently anticipated that they will call. In respect ot most of these witnesses, written statements of their evidence-in-chief have not been obtained or served. As well, a joint conference of the three medical practitioners on the issue of obstetric liability, did not produce a sensible or logical joint report.
-
For a reason which is not apparent, although a senior counsel was retained by the parties to chair that conference and no doubt oversee the production of a joint report which accorded with the Uniform Civil Procedure Rules 2005, the Court has been given a summary cover sheet and a transcript of the joint conference. The revelation to the Court of what was said at the joint conference is contrary to the Rules and is contrary to proper practice. It is regrettable that the Court was presented with evidence in this form.
-
There is a further deficiency with the joint conference. Associate Professor Bryce did not attend it and whilst that may not be a completely disqualifying factor, the nature and content of the joint report, such as it is, is not readily able to be commented upon, or agreed to, by Associate Professor Bryce.
-
Finally, although this is not determinative, it is fair to say that the plaintiff's Statement of Claim requires significant amendment to accord with principles of proper pleading, and the value of the claim as described in the current Statement of Particulars is well out of date.
-
All of these issues in combination make it perfectly apparent that if the case did start on 20 November 2017, it would have to be adjourned part-heard until the middle of next year at the earliest. That is wholly undesirable.
-
Regrettable though a late adjournment for a multi-week hearing is, particularly having regard to the interests of other litigants, the Court is confronted with no real choice in this case but to vacate the hearing fixed for 20 November 2017. I propose to fix the matter for hearing for a period of four weeks, commencing 5 November 2018. I give the parties liberty to apply, having checked with various experts about availability.
-
What I will do, however, is list this for directions on Monday, 20 November at 9.30am. I expect the parties will present me with agreed orders which reflect the following:
Period of time to amend pleadings.
Period of time for each party to serve statements of lay witnesses in accordance with the rules which will stand as their evidence-in-chief.
An agreed timetable for the obtaining and service of further expert evidence.
An agreed timetable for the holding of any further joint conclave, including a reconvening of the obstetric joint conclave.
Provision for an appropriate directions hearing in the course of the first half of 2018.
-
I make the following orders:
Vacate the hearing fixed for 20 November 2017.
Fix the matter for hearing for a period of four weeks, commencing 5 November 2018.
Liberty to apply, having checked with various experts about availability.
Each party pay his, her and its own costs thrown away by reason of the vacation of the hearing date of 20 November 2017.
Stand the proceedings over for directions to 9.30am on 20 November 2017 before me.
**********
Decision last updated: 14 November 2017
0
0
1