Fisher v Marin and Women's and Children's Hospital, Adelaide

[2003] NSWSC 530

CITATION:	Fisher v Marin and Women's & Children's Hospital, Adelaide [2003] NSWSC 530
HEARING DATE(S):	30 May 2003
JUDGMENT DATE:	18 June 2003
JUDGMENT OF:	Sully J at 1
DECISION:	Notice of Motion dismissed with costs
LEGISLATION CITED:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
CASES CITED:	Broken Hill Proprietary Co Ltd & ors v Zunic (2001) 22 NSWCCR 92
PARTIES :	Lauren Fisher by her Tutor Janice Fisher v Raymond Denis Marin & Women's and Children's Hospital, Adelaide
FILE NUMBER(S):	SC 20247/02
COUNSEL:	A. Sullivan QC - Applicant and 1st defendant. M. Nicolle/W. Hawson (solicitors) - Applicant and 2nd defendant R. O'Keefe - Respondent and plaintiff
SOLICITORS:	Blake Dawson Waldron - Applicant and 1st defendant Ebsworth & Ebsworth - Applicant and 2nd defendant Charlton Shearman - Respondent and plaintiff

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

18 June 2003

20247/02 - LAUREN FISHER by her Tutor JANICE FISHER v RAYMOND DENIS MARIN & WOMEN’S AND CHILDREN’S HOSPITAL, ADELAIDE

JUDGMENT

1 HIS HONOUR: There are pending in the Court principal proceedings numbered 020247/2002 and instituted by a Statement of Claim filed on 29 May 2002. The plaintiff is Lauren Fisher, a young woman now aged 17 years. The plaintiff is a “disable person” as defined in SCR Pt 1 R 8; and she sues accordingly by her mother, Mrs Janice Fisher as Tutor. There are two defendants. The first defendant is Dr. Raymond Denis Marin, a legally qualified medical practitioner specialising in obstetrics and gynaecology. The second defendant is the Women’s and Children’s Hospital, Adelaide.

2 The plaintiff’s cause of action is professional negligence. The Statement of Claim contains the following succinct definition of the plaintiff’s essential complaints:

“As a result of the manner in which the first defendant and servants or agents of the hospital conducted the labour and the delivery of the plaintiff, and reasonable delay occurred in effecting emergency caesarean section delivery of the plaintiff and as a consequence, the plaintiff suffered hypoxic brain damage, hypoxic ischaemic encephalopathy and subsequently, she developed Cerebral Palsy.”

3 The principal proceedings are being case managed in the Professional Negligence List that is maintained within the Common Law Division of this Court.

4 By a Notice of Motion filed on 23 December 2002 the first defendant seeks the following relief:

“1. That Supreme Court proceedings No. 020247 of 2002 be transferred to the Supreme Court of South Australia pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act (NSW) 1987 and section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act (SA) 1987.
2. That the Court give appropriate directions.
3. That the costs of the motion be costs in the cause.
4. Any further or other order that this Court considers appropriate.”

5 The plaintiff opposes the making of, in particular, the order claimed in paragraph 1 of Notice of Motion. The second defendant was separately represented at the hearing of the Notice of Motion; but the active participation of the second defendant was limited to a general indication of support of the claims of the first defendant; and to a general adoption of the evidence led, and of the submissions made, by the first defendant.

6 Before canvassing the evidence given, both orally and by affidavit, at the hearing of the Notice of Motion, it is useful to note the thrust of the arguments advanced by the first defendant in support of the claims made in the Notice of Motion. There are, essentially, two basic propositions that are thus advanced. One is that the plaintiff will not be, in any significant way if at all, worse off if the final hearing takes place in Adelaide rather than in Sydney. The other is that, the personal convenience of the plaintiff put to one side, every other relevant consideration favours the hearing in the Supreme Court of South Australia rather than in this Court. The latter argument is put more particularly in the first defendant’s written submissions, and as follows:

“11. The place of the alleged tort occurred in Adelaide, South Australia.
12. Rogers AJA in Bankinvest and Mason CJ, Dean, Dawson, Toohey and Gaudron JJ in Voth (at 570) considered that in professional negligence matters, the determination of negligence and the professional standards applicable is better gauged by a local tribunal more closely aware of local practice and the demands imposed on those professionals.
13. Determining what was reasonable practice in the management of women in labour and delivery in South Australia in 1985 will be important to the consideration of the issue of liability. Therefore, determination of what was reasonable practice would be best gauged in South Australia.
14. The first defendant is likely to engage South Australian expert witnesses to establish what was reasonable practice in South Australia in 1985 in light of local hospital protocols, local practice and standards of the time.
15. If such experts were called to give evidence there would be considerable expense in them travelling from Adelaide to Sydney for that purpose.
16. Substantial evidence will need to be obtained from medical practitioners and health professionals based in Adelaide as to the plaintiff’s past treatment in order to assess the plaintiff’s entitlement to damages, if any. If such experts are required to give evidence there will be considerable expense in them travelling from Adelaide to Sydney for that purpose. The plaintiff has been receiving medical and allied treatment in Adelaide from the time of her birth until late 1999, a period of 15 years.
17. Out of the witnesses considered by the first defendant to be highly likely to be called to give evidence at the hearing of this matter, five of the eight reside in South Australia, one resides in London, one resides in New South Wales and it is unknown where the one remaining witness resides.
18. Of the witnesses considered likely to be called to give evidence on behalf of the first defendant, nine witnesses reside in South Australia and it is unknown where the remaining five witnesses currently reside.
19. A clear majority of the possible witnesses identified by he first defendant continue to reside in South Australia.”

7 In Broken Hill Proprietary Co Ltd & ors v Zunic (2001) 22 NSWCCR 92, I had occasion to consider the operation of sections 5 and 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW). Those proceedings concerned an application to transfer a matter from the Dust Diseases Tribunal of New South Wales into the Supreme Court of South Australia; and I acknowledge at once that, to that extent, the context of that application differs from the context of the present application. I think, nevertheless, that the particular factors to which I gave consideration in Zunic are, mutatis mutandis, the relevant factors for present purposes. In striking a final balance of what the legislation describes as “the interests of justice”, I propose to take guidance from the principles that are discussed in paragraphs 11 and 12 of the Zunic judgment.

1. The Personal Circumstances of the Plaintiff

8 It is appropriate to begin by noting the following allegations forming part of the Statement of Claim:

“13. PARTICULARS OF INJURY
(a) Foetal distress, shock and lack of respiration
(b) Hypoxic brain damage.
(c) Hypoxic ischaemic encephalopathy.
(d) Neonatal seizures.
(e) Neonatal depression.
(f) Development of Cerebral Palsy.
14. PARTICULARS OF DISABILITIES
(a) Abnormal neurological development
(b) Cerebral Palsy
(c) Delayed fine motor and gross motor skills
(d) Due to her disabilities, the plaintiff requires and will continue to require ongoing medical and paramedical attention for the remainder of her life expectancy, which will involve substantial future expense.
15. PARTICULARS OF OUT-OF-POCKET EXPENSES
To be ascertained.
16. PARTICULARS OF ECONOMIC LOSS
The plaintiff will be rendered on a life-long basis, totally incapable of exhibiting any earning capacity whatsoever.”

9 The evidence adduced in connection with the present application paints a much more detailed and vivid picture of the plaintiff’s present, and likely future, condition. It is a truly bleak and appalling picture. The plaintiff can eat and swallow. She can move her arms and legs but her coordination is poor. She has no motor movement, and no prospect of developing any. She has problems of incontinence. She has no power of effective communication. She has episodes of physical pain and discomfort which she registers by screaming for want of any more effective power of communication. She is transported in a customised wheel chair; and the specifications of the wheel chair themselves require periodic adjustment to allow for such factors as posture sores. She cannot operate the wheel chair independently. She cannot perform any of the functions of normal personal hygiene. She is, in every practical sense, and both now and in the foreseeable future, totally dependent upon others for her care. For the time being, those “others” are her parents.

10 In addition, and significantly for present purposes, the plaintiff exists within a framework of familiar routines. The disruption of those routines is apt to cause her significant and obvious distress. An essential feature of those routines is the availability of, and the active involvement of, either or both of the plaintiff’s parents.

11 The picture thus painted, - and it is impossible not to be moved profoundly by it, - entails certain practical consequences that are, in my opinion, very relevant in the present procedural context.

12 First, the plaintiff’s grossly diminished and grossly impoverished existence is at present centred upon Yass, where she and her parents live. To speak of transporting the plaintiff either to Sydney or to Adelaide is to postulate a choice of evils, since any substantial movement at all of the plaintiff is certain to be in high degree, for her, both disruptive and distressing.

13 Secondly, the plaintiff cannot possibly give any actual evidence at trial, wherever that trial might ultimately be conducted.

14 Thirdly, the plaintiff’s parents will almost certainly be required as witnesses at trial. It is out of the question, speaking with humane practicality, for both of them to be simultaneously away from her at the time of trial. If it can be humanly contrived, the minimum acceptable arrangement must be that the absence of one parent must be balanced by the presence with the plaintiff of the other parent.

15 Fourthly, it is practically certain that there will have to be refresher medical examinations of the plaintiff. It is essential that everything that is required in that connection should entail the absolute minimum of significant transportation of the plaintiff.

16 All of the foregoing considerations, dire though they are undoubtedly are, cannot simply swamp all other proper and relevant considerations. They are, however, all matters of profound practical importance in defining correctly the “interests of justice” in connection with the present application. In the present sad and dire case, what is owed decently to humanity and compassion is owed, precisely, ex debito justitiae.

2. The Jurisdiction of this Court has been Regularly Invoked by the Plaintiff

17 The contrary was not submitted; and, indeed, could not be sensibly contended.

18 That there is not anything more of substance to be said on this particular point should not entail that the point is given no more than mere lip service. The cross-vesting power is, no doubt, useful and expedient in various ways and according to various particular circumstances. It does not follow, however, that the power should be construed and applied so as to entail, in practical terms, that any Judge simply superimposes an intuitive, not to say an idiosyncratic, personal judgment upon the judgment, taken with the assistance of legitimate professional advice, of the particular individual litigant.

3. Delay in the Making of the Present Application

19 Delay is not any impediment to the present application.

4. Any Particular Experience and Facility of this Court in Dealing with Proceedings such as the Present Principal Proceedings

20 The principal proceedings instituted by the plaintiff can be dealt with as justly in South Australia as in New South Wales in terms of the relevant substantive law.

21 There is no basis that I can see in the available evidence for any conclusion that the principal proceedings, if cross-vested into the Supreme Court of South Australia, could not receive there all necessary expedition; and, with one significant exception, all necessary case management.

22 That one significant exception lies, in my view, in the consideration that the evidence now in hand makes completely clear that the best interests of the plaintiff herself would entail a trial, not in Sydney or in Adelaide, but in Yass.

23 A trial in Yass would remove entirely the need for any prolonged transportation of the plaintiff. It would minimise any disruption otherwise to her established routines. It would be a blessing to her hard pressed parents. It would entail, no doubt, some inconvenience to the potential witnesses who are located either in Sydney or in Adelaide. Some such inconvenience is, however, unavoidable absolutely. If the trial is held in Sydney, there will be some inconvenience to witnesses who are located normally in Adelaide; and vice versa if the trial is held in Adelaide. A trial held in Yass neutralises, so to speak, the potential comparative inconveniences of Sydney and of Adelaide.

24 It is, of course, too early in the progress of the principal proceedings to make a definitive order for a change of venue to Yass. It seems to me, however, that the special, and specially exigent, features of the present plaintiff’s case make it most desirable to keep open as a real, practical possibility the changing of the ultimate trial venue from Sydney to Yass. This is better accomplished, I think as at present advised, by leaving the principal proceedings in New South Wales rather than in South Australia.

5. The Place of the Torts Pleaded Respectively against the First and Second Defendants

25 This is, incontestably, South Australia.

26 That does not entail, of course, that “the interests of justice” require, without more, a cross-vesting to South Australia: see Zunic at paragraph 28.

6. Comparative Availability of an Appropriate Expedited Hearing

27 In Zunic this was a real consideration in a way that is not present in the present plaintiff’s case. See also the observations in 4. above.

7. Comparative Cost Considerations

28 It is not possible, on the state of the evidence in the present application, to be dogmatic about this factor. It is possible, at best, to form only an imprecise and tentative view.

29 First, it is relevant that the issues for trial have not finally crystallised. At the conclusion of the hearing of the present application, the first defendant tendered a proposed Defence. It puts, effectively, both liability and damage in complete issue. There is as yet no formal defence pleaded by the second defendant; but I proceed for present purposes upon the basis that such a defence, when pleaded, will raise the same issues with the same comprehensiveness.

30 That is not to say by any means, however, that absolutely every imaginable witness on both sides of the record will be called to give oral evidence at trial. The progress of further and better particulars; of discovery and inspection; of interrogatories; and of resolutely practical case management in the Professional Negligence List, might all very well entail a narrowing of the issues for trial; a reduction in the number of oral witnesses required at trial; or both of those factors.

31 Secondly, there is no way of avoiding some cost disadvantage whether the trial takes place in Sydney or in Adelaide. I think that the evidence at present in hand makes it quite impossible to make a rational finding that quantifies that cost disadvantage so as to show a clear rational preponderance of convenience for Adelaide over Sydney, or vice versa.

8. Comparative Evidentiary Advantages

32 In Zunic this was a real consideration because of the relevant Dust Diseases legislation coupled with the practices and procedures in the Dust Diseases Tribunal. There is no comparable consideration in the present case.

9. The Matter of Forum Shopping

33 This, too, was a particular consideration in Zunic, where the cross-vesting application rested in large part upon a direct, not to say an indignant, assertion that Mr. Zunic was engaged in, as it was put, “naked forum shopping”.

34 There is no comparable consideration in the present case.

35 It remains to strike an ultimate balance of the foregoing considerations, bearing in mind that, notwithstanding my previously expressed opinion about the apparent desirability, as matters stand, of Yass as the ultimate trial venue, the question is where, as between Sydney and Adelaide, the “interests of justice” point as the more appropriate forum.

36 Given that choice of less than ideal venues, I have come to the conclusion that the balance tilts discernibly, as the evidence at present stands, in favour of leaving the principal proceedings on foot in this Court.

37 The Notice of Motion is, accordingly, dismissed with costs.

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Last Modified: 07/08/2003