Eastbury v Genea Limited (formerly known as Sydney IVF Limited)

[2015] NSWSC 1834

Supreme Court

New South Wales

Medium Neutral Citation:

Eastbury v Genea Limited (formerly known as Sydney IVF Limited) [2015] NSWSC 1834

Hearing dates:

23 November 2015

Date of orders:

04 December 2015

Decision date:

04 December 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The limitation periods for the causes of action pleaded against Dr Curtotti are extended to 17 December 2015.

 

(2) Dr Curtotti is joined as second defendant in these proceedings.

 

(3) The further amended statement of claim is to be filed and served by 17 December 2015.

 

(4) The first defendant is to make an interim payment to the plaintiffs in the sum of $100,000 within 28 days.

 

(5) The defendant and cross defendant (now second defendant) are to pay the plaintiffs’ costs on an ordinary basis as agreed or assessed.

 (6) The matter is listed for a directions hearing at 9.00 am before the registrar on 10 February 2016.

Catchwords:

CIVIL PROCEDURE – medical negligence claim – application to extend limitation periods – application to join second defendant – application for first defendant to make an interim payment

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Eastbury v Genea Genetics [2014] NSWSC 1793
Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106

Category:

Procedural and other rulings

Parties:

Leighee Eastbury (First Plaintiff)
Philip Eastbury (Second Plaintiff)
Genea Limited (First Defendant/Cross Claimant)
Dr Ranjana Curtotti (Cross Defendant)

Representation:

Counsel:
J Anderson (Plaintiffs)
D Lloyd (First Defendant)
J Lonergan SC (Cross Defendant)

  Solicitors:
Catherine Henry Partners (Plaintiffs)
Kennedys (First Defendant/Cross Claimant)
Avant Law Pty Ltd (Cross Defendant)

File Number(s):

2014/74655

Publication restriction:

Nil

Judgment

1. HER HONOUR: By amended notice of motion filed 24 June 2015, the plaintiffs seek firstly, an order that leave be granted to file a further amended statement of claim joining the cross defendant as a second defendant to the proceedings; secondly, an order pursuant to s 60G(2) of the Limitation Act 1969 (NSW) that the limitation period for the cause of action against the second defendant be extended; thirdly, an order pursuant to s 82 of the Civil Procedure Act 2005 (NSW) that the first defendant pay to the plaintiffs the sum of $100,000, being part of the damages sought to be recovered in the proceedings; or alternatively, an order that the defendant pay to the plaintiffs such other amount as the Court may deem fit being part of the damages to be recovered by the plaintiffs. I shall firstly deal with the limitation issue followed by whether an interim payment should be ordered.

2. The first plaintiff is Leighee Eastbury (“Mrs Eastbury”). The second plaintiff is Philip Eastbury “Mr Eastbury”). The first defendant is Genea Limited (“Genea”). The cross defendant/proposed second defendant is Dr Ranjana Curtotti (“Dr Curtotti”). The plaintiffs relied upon three affidavits of Leighee Eastbury dated 29 July 2015, 14 August 2015 and 19 November 2015 and the affidavit of their solicitor Conrad Curry filed 20 November 2015. Genea relied on the affidavit of Elissa Morton affirmed 21 November 2015 that attaches the affidavit of Mary Weaver dated 19 September 2015 Dr Curtotti relied upon three affidavits of her solicitor Michael Andre Swan sworn 27 October 2015, 12 November 2015 and 19 November 2015.

The pleading framework

3. On 10 March 2014, the plaintiffs issued proceedings against Genea Genetics claiming that their loss was caused by its negligence, or that of its servants and/or agents; and claiming for the additional costs of raising, caring and maintaining their boys that are attributable to their disabilities (see s 71(2) Civil Liability Act 2002 (NSW)) as well as damages for mental harm (see reports of Dr Stephen Allnutt dated 21 November 2014 and 17 February 2015 (Ex B)).

4. On 17 December 2014, Hall J made an order that the limitation period of the cause of action pleaded against Genea Genetics in the statement of claim be extended to 11 March 2014.

5. On 12 December 2014, an amended statement of claim was filed (“ASC”). The first defendant in the ASC is Genea (formerly known as Sydney IVF).

6. At [23] the ASC pleads particulars of negligence that Genea:

(a)   Failed to carry out screening for pre-mutation and full-mutation Fragile X with due care and skill;

(b)   Ultilised cytogenetic methods of analysis in lieu of molecular methods of analysis in testing for Fragile X;

(c)   Failed to follow the 1998 “Guidelines for Standards in Cytogenic Laboratories” published by the Human Genetics Society of Australasia;

(d)   Alternatively, failed to take reasonable steps to apprise itself of the Guidelines for Standards in Cytogenic Laboratories;

(e)   Failed to ensure that the methods it employed when screening for pre-mutation and full-mutation Fragile X were in accordance with the Guidelines for Standards in Cytogenic Laboratories; and

(f)   Failed to inform the plaintiffs and/or their treating medical practitioners that the methods of analysis employed by the first defendant was incapable of detecting pre-mutation Fragile X and that the pre-mutation Fragile X was capable of expanding into full-mutation Fragile X in offspring.

7. On 2 June 2015, Genea filed a cross claim seeking indemnity and contribution against Dr Curtotti and served the report of Dr Cameron, a general practitioner, dated 27 May 2015. Genea pleads in the cross claim that any injury, loss and/or damage was caused as a consequence of the negligence of Dr Curtotti. At [22] the particulars of negligence are set out. They are as follows:

“22   In the event that the plaintiffs have suffered injury, loss and/or damage as alleged (which is denied), such injury, loss and/or damage was caused as a consequence of the negligence of Dr Curtotti.

Particulars of the Negligence of Dr Curtotti

(a)   failure to advise Leighee Eastbury in or about May and/or October 1999 to consult a specialist in genetic testing to obtain advice about her concerns about Fragile X Syndrome;

(b)   in the alternative to (a) failure to advise Leighee Eastbury in May and/or October 1999 to consult an obstetrician to obtain advice about her concerns about Fragile X Syndrome;

(c)   failure in May and/or October 1999 to arrange for a referral for Leighee Eastbury to a specialist in genetic testing and/or obstetrician;

(d)   failure to seek clarification or further information from Genea, Macquarie Pathology, a geneticist and/or an obstetrician about the meaning and effect of the 7 October 1999 test result sent to her by Genea;

(e)   failure to warn Leighee Eastbury that she did not understand the meaning and effect of the 7 October 1999 test result sent to her by Genea;

(f)   failure to warn Leighee Eastbury in October 1999 that the test results did not establish that Leighee Eastbury was not a carrier of the Fragile X gene.”

8. In the proposed further amended statement of claim (“PFASC”) the plaintiffs seek to join Dr Curtotti as second defendant and repeats and adopts the claims made by the defendant in its cross claim against Dr Curtotti. Like the defendant, they also rely on the report of Dr Cameron in support of their allegations.

The background facts

9. The facts (for the purpose of these applications only) were set out by Hall J at [12] to [27] in his judgment Eastbury v Genea Genetics [2014] NSWSC 1793. I gratefully acknowledge and adopt some of them.

10. The plaintiffs are the mother and father of two children, Hayden Eastbury and Jacob Eastbury. Hayden was born in 2008. Jacob was born in 2011.

11. In May 2012, Hayden was diagnosed by Dr Lynn Barra, a paediatrician, with Autism and Global Development Delay. In July 2012, subsequent test revealed that Hayden had a full mutation sized expansion of “Fragile X”, consistent with a diagnosis of Fragile X Syndrome.

12. In August 2012, Jacob underwent the same tests and received the same diagnosis.

13. Both children suffer from significant speech and language delays, behavioural and language difficulties and neuro-developmental and physical features of Fragile X Syndrome. The plaintiffs’ claim is that it is unlikely that either child will be able to live independently as adults.

14. Mrs Eastbury was born in 1979. Her uncle, Robert Gray, was born in 1949 and is Mrs Eastbury’s father’s twin brother. Her uncle was diagnosed with Fragile X Syndrome in 1988, when he was approximately 40 years of age. Mrs Eastbury understands that her uncle has the full mutation of the genetic condition. He needed a carer for his entire life. He has limited expressive language and lives in a nursing home. He is now approximately 65 years of age.

15. Mrs Eastbury was advised to undergo testing to find out if she and her father were carriers of the genetic mutation. She says that always knew that this was something that she had to do prior to starting a family.

16. On or about 27 September 1999, Mrs Eastbury consulted a general practitioner, Dr Curtotti, who practiced in Kingston, ACT. She said that she discussed with Dr Curtotti her concerns about being a carrier of Fragile X and requested that she be tested in respect of the same. Dr Curtotti gave her a referral for chromosomal testing (Fragile X). A copy of the referral to Macquarie Pathology Services (Ex A) states, “Uncle has a factor X mental retardation.”

17. On or about 28 September 1999, Mrs Eastbury attended Macquarie Pathology Services in Canberra where she handed a staff member the referral and blood samples were taken.

18. On 28 September 1999, Macquarie Pathology Services completed a referral to Sydney Genetic, now Genea, requesting “chromosome (Fragile X)”. It also noted in this referral that “uncle has x-factor mental retardation.” Macquarie Pathology Services has been deregistered. To date, the parties have been unable to locate the records of Macquarie Pathology Services.

19. On or about 6 and 7 October 1999, Genea performed a chromosome analysis for Fragile X. The chromosome analysis could only detect whether Mrs Eastbury presently had Fragile X but it could not detect her carrier status. In order to detect carrier status molecular testing was necessary.

20. On or about 7 October 1999, Mrs Eastbury was informed, via telephone from Kingston Family Surgery, that the result of the testing was negative. She said no hard copy of the test result was given to her at that time.

21. In 2002, Mrs Eastbury met Mr Eastbury. In 2006 they were married. Mrs Eastbury said that, on the understanding that she was not a carrier of Fragile X, she and Mr Eastbury started a family.

22. Her first pregnancy with Hayden was normal. Her second pregnancy with Jacob was also normal.

23. On or about August 2010, when Hayden was about two years old, Mrs Eastbury noticed that he was having difficulties with his speech compared to other children of the same age. She said she was not concerned at that stage because she understood that children develop differently. However, she soon realised that his gross and fine motor skills were not developing in accordance with developmental milestones.

24. In September 2010, Mrs Eastbury took Hayden to a speech pathologist who informed her of her concern that there may be underlying factors to Hayden’s problems.

25. In about May 2012, Hayden was diagnosed with autism and global development delay by Dr Lynn Banna, paediatrician.

26. In August 2012, following multiple blood tests of Hayden, including a DNA test for Fragile X Syndrome, Mrs Eastbury said she learnt the results of the blood test which stated that Hayden has a full mutation sized expansion of Fragile X consistent with a diagnosis of Fragile X Syndrome.

27. Following Hayden’s positive result, Mrs Eastbury made efforts to obtain a copy of her previous test results carried out in 1999. She made contact with Genea and obtained a copy of her test results dated 7 October 1999.

28. On or about 7 August 2012, she requested her general practitioner to refer her and Jacob for genetic testing for Fragile X.

29. In due course, Jacob’s test results revealed that he also has a full mutation of the Fragile X gene, consistent with a diagnosis of Fragile X Syndrome.

30. Mrs Eastbury said that she was devastated upon receiving the test results and the diagnosis.

(A)   Extension of the time to join cross defendant, Dr Curtotti

31. The plaintiffs seek to join the cross defendant, Dr Curtotti, as the second defendant and file a further amended statement of claim joining her as second defendant. I have already set out the case the plaintiffs plead against her.

32. Senior counsel for Dr Curtotti accepted that the indicia set out in s 60(1) have been satisfied but submitted that it is not just and reasonable to extend the limitation period in accordance with s 60G of the Limitation Act.

33. The Court has jurisdiction to extend the limitation period of three years fixed under s 18A of the Limitation Act if the action is brought within three years of the time at which the plaintiff became aware, or ought to have become aware, of all three matters listed in s 60I(1) of the Limitation Act.

34. Section 60G of the Limitation Act reads:

“60G   Ordinary action (including surviving action)

(1)   This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2)   If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

35. Counsel for the plaintiffs submitted that the discretionary matters to be considered are firstly, that Dr Curtotti is a party to the proceedings having been joined pursuant to s 26 of the Limitation Act; and secondly, the plaintiffs do not intend adducing any evidence against Dr Curtotti as a defendant other than that adduced by Genea. Therefore, the plaintiffs submitted that there can be no prejudice to Dr Curtotti being joined as second defendant.

36. Senior counsel for Dr Curtotti submitted that the report of Dr Cameron is inadequate and does not comply with UCPR 31.27 in that it fails to include as annexures the literature or other materials utilised in support of his opinions. According to senior counsel, this is a material failure as the report appears on its face to utilise materials to support the standard care he alleges that are postdating the conduct the subject of the allegations and not of a nature or context of setting out in an objective and appropriate fashion the relevant standard of care prevailing for general practitioners at the time. This would lead the court to have some doubt as to whether the report can be properly considered in support of the allegations made and thus indicative of a claim that is not doomed to fail. While I accept that a red book referred to in Dr Cameron’s report is not produced, and that he refers to more recent guidelines and says that they reflect the practice in 1999, the book will be produced and the second proposition is one to be tested at trial.

37. Senior counsel further submitted that the fact that Dr Curtotti is already a party as a cross defendant does not remove any consideration that to add her as a defendant does not lead to any prejudice to her. Being joined to proceedings as a defendant is different to status in proceedings only as a cross defendant for reasons that are obvious. According to Dr Curtotti, it is incumbent on the plaintiff when seeking orders of this nature from the court that there is clarity in the evidence relied upon so that the court can make the necessary assessments in the exercise of its discretion.

38. Further, senior counsel submitted that there is no evidence served or provided to the cross defendant that evidences the nature and extent of damage alleged pursuant to UCPR 31.36. The claims articulated are both statutory in nature, mental harm pursuant to the provisions of the Civil Liability Act is alleged to have been suffered by the plaintiffs, and the statutorily saved claims for the extra costs associated with the disabilities suffered by the plaintiffs’ two sons. Treating comment and report by various experts assisting with care and therapies for the plaintiffs’ sons, while outlining that care, do not address the key issue which is the extra costs associated in fact in the past and the future. Also the first plaintiff’s affidavit appears to be incomplete in regard to this latter issue and correspondence to clarify these matters has been recently sent to the cross defendant’s solicitor and the responses to date she says have been uninformative.

39. Overall, senior counsel for Dr Curtotti submitted that there is insufficient evidence on which to be currently satisfied that the limitation period should be extended against her.

The medical evidence to date

40. Three medical experts have been served to date, namely the reports of Drs Greg Cameron, Mark Henschke and Amor. I shall summarise the relevant portions of them.

41. Dr Cameron, in his report dated 27 May 2015, provided the following opinion:

“7.1   … I obtained a copy of the Guidelines for Preventative Activities in General Practice (also now known as the ‘Red Book’) 4th Edition from 1996. My recollection is that this was the current edition in 1999.

7.2   In my experience as a GP of 22 years, Fragile X is not commonly seen. Genetics is an area of Medicine that has exploded in the scope of knowledge and understanding over the last 20-30 years and in my view, it is outside the scope of a General Practitioner’s knowledge or training to be an expert in the thousands of genetic diseases that are detectable.

…

7.8   This case highlights the pitfalls or ordering complex tests without fully understanding the implications of a negative result. From the documents, I have been provided, it appears Genea was only able to perform genetic testing to assess whether Mrs Eastbury had Fragile X, not as to whether she was a carrier.

7.9   In my opinion, it was outside Dr Curtotti’s area of expertise to adequately advise Mrs Eastbury regarding her risks of being a carrier of Fragile X and the accepted professional accepted practice in 1999 would have been to refer her and her future husband for Genetic counselling and testing at a specialist centre, or at the very least, have a discussion wither with the pathologist and/or geneticist to fully understand the implications of the test result.”

42. Dr Cameron concluded:

“8.1   In my opinion, Dr Curtotti, fell below the level of competent professional practice in her treatment of Mrs Eastbury. I believe it was outside her level of training and expertise to test and counsel Mrs Eastbury adequately as to her risk of being a Fragile X carrier and the consequences thereof.

8.2   By referring her to Macquarie Pathology for Fragile X testing, Dr Curtotti did not understand the implications of a negative test. She did not seek any further clarification from Genea, a geneticist or an obstetrician and should have done so.

8.3   With refer to AMA and RACGP and other guidelines noted above, all recommenced referral to a specialist Genetic Clinic for counselling and/or appropriate testing. Dr Curtotti did not offer this to Mrs Eastbury.”

43. Dr Curtotti relies on the report of Dr Mark Henschke dated 4 August 2015. He expresses the following opinions:

“…

While Dr Curtotti has written on the Macquarie Pathology request form ‘genetic testing for carrier status of x-factor’ rather than ‘genetic testing for carrier status of Fragile-X’ Macquarie Pathology has interpreted ‘x-factor’ as ‘Fragile-X’.

Having used the words ‘genetic testing’ and ‘carrier status’ and indicating that there was a family history of the disorder, I believe that it would be widely accepted by Dr Curtotti’s peers that it was reasonable for her to expect that a test for carrier status of the Fragile X gene would be performed.

Dr Curtotti requested that Macquarie Pathology undertake ‘genetic testing for carrier status’ on Ms Eastbury who had a family history of the Fragile-X syndrome. She received confirmation that this test had been forwarded on to Genea and that the test results would be back in 42 days, the normal time interval for the DNA studies for Fragile-X.

Consequently, I believe that it would be widely accepted by Dr Curtotti’s GP peers that it was reasonable for her to assume that the results she received form Genea via Macquarie Pathology were those for the carrier status of the Fragile-X gene.

…”

44. The plaintiffs rely on a report of Dr Amor, a consultant clinic geneticist, dated 30 January 2014, who provided the following opinion:

“These guidelines draw the important distinction between the cytogenetic method and the molecular method of diagnosing Fragile X.

The cytogenetic method involves the microscope examination of the X chromosome in lymphocyte cultures. The lymphocytes basis of Fragile X syndrome in 1991, the cytogenetic method was the only way to diagnose Fragile X; however the cytogenetic test had significant shortcoming, most importantly that it was not effect at detecting female carriers of Fragile X.

…

In my opinion, in 1999, faced with a request for Fragile X testing and the clinical information ‘Uncle has X-factor mental retardation’, the molecular test should have been performed on Leighee Eastbury. If GENEA Genetics were unable to perform the molecular test for Fragile X then they should have referred the test to another laboratory.

…

In my opinion, the genetic testing conducted by GENEA Genetics fell below the accepted professional standard for genetic testing for Fragile X in 1999.”

45. As the High Court judgment in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 indicated, in determining the exercise of the statutory discretion to extend a limitation period, the real question is whether delay has made the chances of a fair trial unlikely (per Toohey and Gummow JJ (agreeing with McHugh and Dawson JJ but in separate reasons) at 550). In determining that question it is necessary for the court determining the application to identify the nature of the liability issue that would arise at trial. That done, it then becomes necessary to identify all of the particular facts and circumstances relevant to that issue in order to determine whether prejudice could exist or arise by reason of the delay that has ensued.

46. In relation to liability, the report by Dr Henschke is favourable to Dr Curtotti, but the report of Dr Cameron is unfavourable. In my view, there the plaintiffs have an arguable case against Dr Curtotti. Dr Curtotti is already joined to these proceedings and does not suffer any actual prejudice such that she will not have a fair trial. In my view, in these circumstances it is just and reasonable to extend the limitation period and join the cross defendant as second defendant to the FASC. I order that the FASC is to be filed and served within 14 days.

(B)   Application for interim payment by Genea only

47. The plaintiffs seeks an interim order on the basis that the Court is satisfied that, if the proceedings went to trial, they would obtain judgment for substantial damages against the defendants (s 82(3)(c)). The plaintiffs seek payment of $100,000, and submitted that they are likely to recover substantial damages and the amount of the interim payment will only be a minor proportion of the damages recoverable.

48. Section 82 of the Civil Procedure Act relevantly reads:

“82   Court may order interim payments

(1)   In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.

(2)   The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.

(3)   The court may not make such an order unless:

…

(c)   the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

…

(5)   The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court’s opinion, are likely to be recovered by the plaintiff.

(6)   In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely.

…”

49. In Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106, the Court of Appeal (per Macfarlan JA with whom McColl JA and Sackville AJA agreed) set out the terms of the test to be applied under s 82(3)(c). At [25] and [32] the Court of Appeal stated:

“[25]   …Taken together, the words do not require a plaintiff to do more than show that it is more probable than not that he or she will succeed at the trial in obtaining judgment for substantial damages….

…

[32]   The application for interim payment required the primary judge to undertake a preliminary assessment, upon the basis of the evidence before him and on the balance of probabilities, of whether, if the proceedings went to trial, the applicants would obtain substantial damages. Such an assessment is in my view to be made upon the basis of the evidence put before the court as to the substantive issues and not on the basis of mere speculation as to what might or might not be the evidentiary position at the final hearing. Thus, it was for the judge here to consider on the negligence issue such of the evidence that was before him as was entitled to weight...”

50. The plaintiffs rely upon the opinion contained in the report of Dr Amor, a portion of which have been reproduced earlier in this judgment. Dr Amor opined that faced with a request for Fragile X testing and the clinical information that Mrs Eastbury’s uncle had X factor mental retardation, Genea ought to have performed molecular testing or, if unable to do so, referred the test to another laboratory. Genea has not served any expert evidence to the contrary. It has only served the report of Dr Cameron which supports its cross claim for contribution from Dr Curtotti.

51. Senior counsel for Genea acknowledged that the plaintiffs have served an expert’s report that supports their case and that if they are successful at trial they will receive substantial damages.

52. However, Genea denies liability and says that the following finds of fact relevant to Genea’s defence are:

(a)   Mrs Eastbury on referral from Dr Curtotti to Macquarie Pathology Services, attended Macquarie Pathology Services on 28 September 1999 on which occasion blood samples were taken;

(b)   Genea’s first involvement appears to be the receipt of a referral dated 28 September 1999;

(c)   It appears that Genea, together with that referral, received a further document from Macquarie Pathology Services. The circumstances in which Macquarie Pathology Services referred the testing to Genea are uncertain. However, what appears to be clear is that Genea was retained not by the plaintiffs or Mrs Eastbury’s general practitioner, but by Macquarie Pathology Services;

(d)   Genea, as at September/October 1999, did not perform testing to establish the carrier status of Fragile X of an individual. The only testing Genea was capable of performing at that time was chromosomal analysis to determine whether a person presently was affected by Fragile X;

(e)   Genea performed the only testing it was capable of performing, being chromosomal analysis of Mrs Eastbury’s blood sample. Those test results are set out in Annexures C and D of Ms Weaver's affidavit. The test results were sent to Macquarie Pathology Services and Dr Curtotti in early October 1999;

(f)   No criticism is made by the plaintiffs of the quality of the chromosomal tests which Genea performed; and when Mrs Eastbury was told by Dr Curtotti that “the result of the testing was negative” on 7 October 1999, that was a correct statement of the results of Genea’s testing.

53. Genea’s defence is that if there is a gap between the information the plaintiffs sought and the information Genea provided, the fault for that gap does not lie with Genea, because it had no direct relationship with the plaintiffs, had no communications with them and performed the test it was asked to perform accurately.

54. For the reasons stated above, counsel for Genea submitted that the Court should not find that it is satisfied that the plaintiffs will obtain a judgment for substantial damages against them.

55. As Hall J set out some relevant findings at [67] to [73] (for the purposes of the application to extend the limitation period in relation to Genea only). They are:

“67   The evidence, including in particular the evidence of Ms Weaver, establishes the following chain of written communications and events concerning the testing of Mrs Eastbury’s blood sample:

(i)   Dr Curtotti sent a doctor's referral in respect of Mrs Eastbury to Macquarie Pathology. Macquarie Pathology, it is accepted, then took a blood sample from Mrs Eastbury.

(ii)   Macquarie Pathology then completed the ‘Pathology Referral’ addressed to ‘Sydney Genetics’ (now Genea).

(iii)   Macquarie Pathology, on the evidence, would have attached Dr Curtotti's handwritten referral written on Macquarie Pathology letterhead to the ‘Pathology Referral’, and then sent both documents to Genea.

68   The critical information recorded and provided in both documents sent to Genea by Macquarie Pathology included the following:

(1)   The patient concerned was at the time of the referral a female aged 20 years.

(2)   That she had an uncle who had the X factor associated with mental retardation.

(3)   Mrs Eastbury's blood sample was sent to Genea, with the referral documents.

(4)   The documents included a reference to ‘chromosome (Fragile X)’ testing.

(5)   The reason for the request for testing, as disclosed in Dr Curtotti's referral/request written on Macquarie letterhead, namely:

‘genetic testing for carrier status of X-factor”; and “Uncle has X-factor mental retardation.’

69   On the evidence on this application it may be concluded that it would have been apparent to anyone reading the ‘Pathology Referral’ that the family genetic history (associated with Mrs Eastbury's uncle) formed the basis upon which a female patient (Mrs Eastbury), then of childbearing years (age 20) was being referred for testing.

70   Whilst, it is to be noted, the typed ‘Pathology Referral’ sent by Macquarie Pathology to Genea reproduced, in typed form, Dr Curtotti's words ‘uncle has x-factor Mental Retardation’, it did not also reproduce Dr Curtotti's further handwritten note on the request form, as set out above, “genetic testing for carrier status of X-factor”. The latter was clearly a critical statement.

71   Whilst the failure to include these words in the ‘Pathology Referral’ was a material omission, a reading of the document attached to it, namely Dr Curtotti’s handwritten referral request, would have disclosed that Dr Curtotti had made his request for testing for the purpose of and on the basis of the need to determine a critical issue, namely, the ‘carrier status’ of Mrs Eastbury.

72   Genea, it appears based on Ms Weaver’s evidence, though not having the capability to perform molecular testing as at September 1999, had the information in Dr Curtotti's handwritten referral as to the reason the request for testing was being made, namely, “genetic testing for carrier status” of X-factor. If Genea did not have the capability of undertaking testing of that kind, of course, it would have been expected to have replied to Macquarie Pathology to the effect that it could not fulfil the request for testing. However, on the evidence in this application, it did not do so. Instead, it did act on the pathology request but only by undertaking a limited test analysis that was within its then capability and inserting the results of the same in the report sent by Genea to Macquarie Pathology with a copy to Dr Curtotti. In that report, it recorded, inter alia:

‘46, XX Female - No abnormalities detected

Fragile X negative in 75 cells examined.’

73   In responding to the referral and request for testing in these terms and, in particular, having regard to the specific terms of Dr Curtotti’s request, Genea's report was effectively conveying or suggesting, or at least impliedly representing. in answer to Dr Curtotti's handwritten request, that Mrs Eastbury had no carrier status. This, at least arguably for the purpose of the present application, might be inferred as arising from a failure by Genea, by its employees, to properly read Dr Curtotti's handwritten instructions attached to the ‘Pathology Referral’. Had both documents been read by Genea’s employee the basis and purpose for which the testing was being requested would have been made clear: ‘genetic testing for carrier status of X-factor’. If Genea could not provide an answer, it had to say so.”

56. Hall J concluded that having regard to the specific terms of Dr Curtotti’s request, Genea’s report was effectively conveying or suggesting, or at least impliedly representing, in answer to Dr Curtotti's handwritten request, that Mrs Eastbury had no carrier status. Had both documents been read by Genea’s employee the basis and purpose for which the testing was being requested would have been made clear: “genetic testing for carrier status of X-factor”. If Genea could not provide an answer, it had to say so. Taking the above findings into consideration, I am satisfied that it is more probable than not that the plaintiffs will succeed at trial in obtaining judgment for substantial damages against it.

Quantum

57. Counsel for Genea argued that in the exercise of my discretion I should not make an interim order for payment for two reasons. They are first, there is insufficient evidence of need for the services identified by Mrs Eastbury in her affidavit sworn 14 August 2015. In that affidavit Mrs Eastbury states that the AEI program expired for Hayden on 30 August 2015 and the AEI program is due to expire for Jacob on 12 March 2018: para [7]. Mrs Eastbury says that she believes both boys will be transitioned to a new program under the NDIS “in the near future” para [8]. She says that she is unaware of the funding available under the NDIS. The affidavit of Dr Curtotti's solicitor, Michael Swan sworn 12 November 2015 raises the possibility that many of the services the plaintiffs claim they need assistance to fund will be covered by the NDIS. Genea submitted that if the plaintiffs wish to obtain the relief sought, they ought to place before the Court evidence about the level of funding they will obtain and they have not done so.

58. Secondly, as was recognised by Macfarlan JA at [24] in Forster, counsel for Genea submitted that a relevant factor is as follows:

“Accordingly evidence indicating that a defendant may not be able to recover an interim payment from the plaintiff in the event that the defendant succeeds in the proceedings is a matter to be taken into account in considering the degree of satisfaction which the court considers it appropriate to be achieved in a particular case.”

59. Both Hayden and Jacob suffer from an autism spectrum disorder, Fragile X syndrome, severe global development delay and a sensory processing disorder. Jacob exhibits regular “challenging behaviours” including throwing objects and falling to the floor. At the age of 56 months Hayden was found to have a developmental age of 21 months. At the age of 39 months Jacob had a developmental age of 12 months. Both children require multi-disciplinary therapy in the form of speech therapy, occupational therapy and behaviour management. The cost of the treatment for the next two years is likely to exceed $28,000 for each child. The costs and their respective details are summarised in the table in [11] of Mrs Eastbury’s affidavit dated 14 August 2015. The plaintiffs have been receiving financial assistance from the Department of Social Security under the Autism Early Intervention Programme. That funding is capped at $6,000 per annum and is available only up until the age of seven years with an aggregate limit of $12,000. Hayden is now seven years of age so his funding will cease.

60. The plaintiffs’ ability to parent their sons is impacted by their respective behaviours and by their own psychological injuries flowing from the events surrounding their sons’ births. Mrs Eastbury has an adjustment disorder with depression and anxiety manifesting in fatigue, sleep disturbance and impaired social functioning. The second plaintiff has a chronic adjustment disorder characterised by fluctuating depressed mood, episodic emotional distress, reduced energy and libido and emotional withdrawal from his wife.

61. Mr Eastbury’s position as an engineer was made redundant on 18 May 2015 and he has found part time work (three days per week) as a loans co-ordinator for Baptist Care. As a result his gross income has been reduced from $113,564 per annum to something in the order of $30,000. Mrs Eastbury is unable to engage in remunerated employment due to Hayden and Jacob’s need for care and attention.

62. The plaintiffs require continuing psychiatric treatment and psychotropic medication. They also desperately need respite care which formerly they could rarely afford but which is now beyond their financial reach.

63. Counsel for Genea drew this Courts attention to the fact that the plaintiffs have not served any quantum evidence. However, from the affidavits referred to above there is sufficient evidence to show that the plaintiffs are experiencing a weekly shortfall of $200 and at this rate this equates to $10,400 per year. They are unable to pay for psychological or psychiatric help which they need in order to cope with their family circumstances. While I appreciate NDIS will offer some benefits, it is not known at this stage what they will be. This is not the plaintiffs’ fault. Some funding will cease for Hayden, and the children’s need for additional medical services as they age, and whether funding will be available, is not certain. These costs have arisen largely as a result of the additional costs of raising, caring and maintaining the children that are attributable to their disabilities.

64. Because of the children’s age (4 and 7) it is probable that an accurate assessment of their damages will not be possible for at least three years. Reports then need to be obtained, a trial date allocated, the trial has to take place and a judgment given. On this scenario, the hearing date is at least four years in the future and the plaintiffs will be obliged to make payments for the children’s medical needs until then.

65. Taking all of these factors into account, I exercise my discretion in favour of the plaintiffs and order that the first defendant is to make an interim payment. It is my view that an appropriate payment is the sum $100,000.

Costs

66. Normally costs follow the event. The plaintiffs have been successful. They should be awarded their costs.

67. Senior counsel for Dr Curtotti submitted that she should have her costs for preparing submissions for an interim payment where it was not ultimately pursued against her at the hearing. However, this was only a minor part of the preparation of the issues for trial and senior counsel was excused when the interim payment argument took place. I decline to make this order.

The Court orders that:

(1)   The limitation periods for the causes of action pleaded against Dr Curtotti are extended to 17 December 2015.

(2)   Dr Curtotti is joined as second defendant in these proceedings.

(3)   The further amended statement of claim is to be filed and served by 17 December 2015.

(4)   The first defendant is to make an interim payment to the plaintiffs in the sum of $100,000 within 28 days.

(5)   The defendant and cross defendant (now second defendant) are to pay the plaintiffs’ costs on an ordinary basis as agreed or assessed.

(6)   The matter is listed for a directions hearing at 9.00 am before the registrar on 10 February 2016.

**********

Decision last updated: 04 December 2015