Davis v Graziotti

[2001] VSC 13

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7991 of 2000

JOHN DAVIS	Plaintiff
v.
DR. PAUL GRAZIOTTI	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 FEBRUARY 2001
DATE OF JUDGMENT:	12 FEBRUARY 2001
CASE MAY BE CITED AS:	DAVIS v. GRAZIOTTI
MEDIUM NEUTRAL CITATION:	[2001] VSC 13

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CATCHWORDS:      Cross-vesting – Application by defendant to transfer proceeding to Western Australia – Not in the interests of justice – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. O'Dwyer	Slater & Gordon
For the Defendant	Mr. N. Murdoch	Clayton Utz

HIS HONOUR:

1. The plaintiff, who is now aged 72, lives at Morwell in Victoria.

1. In December 1998 he and his wife travelled to Perth to visit their daughter.  During the course of their visit to Perth the plaintiff sought medical treatment from the defendant Dr. Paul Graziotti for pain he was suffering in the back, caused so the plaintiff believes by shingles.

1. It is the case for the plaintiff that on 21 December 1998 at St. John of Gods Hospital in Perth the defendant injected into the plaintiff's spinal canal substances which included Marcain, Kenacort, Clonidine and Hyalase.

1. As a consequence of receiving that treatment the plaintiff suffered injury to his spinal cord resulting in paraplegia.

1. In June 1999 the plaintiff was transferred from St. John of Gods Hospital to the Latrobe Regional Hospital.

1. As I understand the situation the plaintiff has now been discharged as an in-patient at the Latrobe Regional Hospital although he continues to visit the hospital regularly for medical treatment.

1. On 12 December 2000 the plaintiff filed a writ in this Court naming Dr. Graziotti as defendant and by which he seeks to recover damages from Dr. Graziotti in respect of the injuries and consequent disabilities suffered by him.

1. I now have before me an application by the defendant for an order transferring the proceeding to the Supreme Court of Western Australia pursuant to the provisions of s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.)

1. There are two principal grounds upon which the defendant seeks to have the proceeding transferred to Western Australia.

1. In the first place the plaintiff's cause of action arose in Western Australia.  In the second place the defendant and a number of witnesses the defendant will wish to call at the trial of the proceeding are residing in Western Australia.  Those witnesses include nursing staff, a treating neurologist, two doctors who reported on the MRI scans performed upon the plaintiff and other medical personnel who treated the plaintiff whilst he was in Western Australia.

1. The plaintiff resists the defendant's application upon the following grounds.

1. In the first place there is a number of witnesses resident in Victoria who the plaintiff will call at the trial including his wife, two specialist medico legal anaesthetists, his present treating doctor, the Clinical Director of Rehabilitation at the Latrobe Regional Hospital, the Director of Rehabilitation at the Caulfield General Medical Centre, a medico-legal occupational therapist and various lay witnesses to give evidence as to the plaintiff's unusual fitness and vitality prior to the incident.

1. In the second place the plaintiff does not have control of his bladder and bowel and is prone to urinary tract infections which require on-going treatment.  In that situation, and having regard to the plaintiff's age and present state of health, it would cause great hardship to him to be compelled to litigate his claim in Western Australia.

1. Finally it is said that it would place a severe financial burden on the plaintiff if he was obliged to conduct the proceeding in Western Australia.

1. If one put to one side the personal circumstances or situation of the plaintiff one would be tempted to say that as the inconvenience to witnesses on either side can largely be alleviated by all but the principal witnesses giving evidence by video link, it is appropriate to transfer the proceeding to Western Australia because that is where the plaintiff's cause of action arose.

1. But to do so would totally ignore the significant physical and financial burden which would be imposed upon the plaintiff and his wife by adopting that course.

1. If the plaintiff was a much younger person upon whom air travel would impose little or no burden, that would be one thing.  But of course he is not.

1. I am not persuaded that it is in the interests of justice that this proceeding should be transferred to Western Australia and the defendant's application in that regard is refused.

1. The defendant's summons, filed in the Court on 30 January 2001 is dismissed.  I order that the parties' costs of the summons be their costs in the proceeding.

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