Coughlan v Monash Health - [2025] VSC 52

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2021 01078

BETWEEN:

BRENDA COUGHLAN	Plaintiff
v
MONASH HEALTH & ORS (according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2025
DATE OF RULING:	20 February 2025
CASE MAY BE CITED AS:	Coughlan v Monash Health & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 52

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PRACTICE AND PROCEDURE —Application pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 — Proposed separate trial to be conducted on the basis of assumed facts — Whether all facts arguable would be before the Court — Whether appropriate to order a preliminary trial on issues of statutory construction that bear on the factual dispute at trial — Murphy v State of Victoria [2014] VSC 363 — Murphy v State of Victoria [2014] VSCA 238 — Hoh v Ying Mui Pty Ltd [2019] VSCA 203 —Vale v Daumeke [2015] VSC 342 — Jacobsonv Ross [1995] 1 VR 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Hamilton	Shine Lawyers
For the First Defendant	B Ihle KC and J Ryan	K&L Gates
For the Second Defendant	M Britbart KC and B House	Carroll & O’Dea Lawyers
For the Third Defendant	P Herzfeld SC and G Gray	Wotton Kearney

Contents

A.. Introduction & Background

A.1 The pleaded case
A.2 What conduct is said to constitute child abuse?

B.. Principles

B.1 The relevant legislative provisions:
B.1.1Limitation of Actions Act
B.1.2LID Act
B.1.3Wrongs Act

C.. Submissions of the parties

D.. Consideration

HER HONOUR:

A Introduction & Background

These reasons deal with the second and third defendants’ summonses filed 9 August 2024 for the trial of separate questions pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules).
The plaintiff is presently 81 years old. She brings a claim for personal injury damages against three defendants for events occurring in 1962 and 1963 when she was aged 18 and 19 years old. The circumstances arise out of her pregnancy and the subsequent birth of her child on 25 May 1963. She was unmarried at the time but pleads she intended to raise her child with the child’s father whom she intended to marry. The plaintiff’s child (the baby) was adopted after birth.[1]
[1]At the request and by consent of the parties, and out of an abundance of caution given the requirements in the Adoption Act 1984 (Vic), the plaintiff’s adopted child is not named.
The first defendant, Monash Health, is the successor in law to Queen Victoria Memorial Hospital (the hospital) where the plaintiff received pre- and post-natal medical care and delivered her baby. The second defendant, the Sisters of St Joseph, operated the St Joseph’s Foundling Hospital (St Joseph’s) in Broadmeadows during 1963. The baby was taken from the hospital and placed there between 4 June 1963 and 10 July 1963 and then placed with…

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.

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Details

Case: [2025] VSC 52
Decision Date: 20 February 2025

CaseChat Overview and Summary

Coughlan, the plaintiff, filed an application against Monash Health, the defendant, in the Supreme Court of Victoria. The central dispute revolved around the interpretation of statutory provisions and their application to the facts of the case. The plaintiff sought a separate trial based on assumed facts, arguing that this approach would allow for a focused examination of the legal issues involved. The court had to decide whether all arguable facts would be presented to the court under this method, and if it was appropriate to order a preliminary trial on matters of statutory construction that are pertinent to the factual dispute.

The legal issues before the court included whether a separate trial on assumed facts could effectively address the statutory interpretation questions and if such a trial would provide a comprehensive view of the factual dispute. The court considered precedents such as Murphy v State of Victoria and Hoh v Ying Mui Pty Ltd, which discussed the utility of assumed facts in complex cases. Additionally, the court examined Jacobson v Ross to understand the principles guiding the use of preliminary trials in statutory construction disputes.

The court reasoned that while a trial based on assumed facts could streamline the process, it might not fully capture all arguable facts necessary for a complete resolution of the dispute. The court found that ordering a preliminary trial on statutory construction issues would be beneficial as it would clarify the legal framework before the main trial. This approach, the court held, would ensure that the factual dispute is examined in light of the correct legal principles. The final orders of the court mandated a preliminary trial to address the statutory interpretation issues, followed by the main trial on the assumed facts.

Orders