Habelrih v Szirt - [2004] NSWSC 54

CITATION: Habelrih & Ors v Szirt & Ors [2004] NSWSC 54

HEARING DATE(S): 6 February 2004

JUDGMENT DATE:
18 February 2004

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: 1. I order the appointment of a joint conference pursuant to Pt 36 r 13CA of the Supreme Court Rules to be attended by Professor Colditz, Dr Williams, Dr McPhee and Dr Evans. 2. I order that an independent person be appointed to act as chairperson at such conference. 3. The conference is to be held without the attendance of legal representatives for the parties. 4. The expert witnesses identified in order 1 are directed to endeavour to reach agreement in relation to the questions set out in Annexure E to the affidavit of Rebecca Kearney affirmed 23 January 2004 by reference to the documents listed in Annexure F to that affidavit. 5. I order that the experts provide the court with a joint report specifying the matters agreed and the matters not agreed and the reason or reasons for the non-agreement. 6. I grant liberty to the parties to apply on three days notice failing agreement concerning the questions and the documents referred to in order 4, or as to the independent person to be appointed as chairperson. 7. Costs of the application concerning the joint conference of expert witnesses are to be costs in the cause. 8. The plaintiffs' motion concerning mediation is stood over to a date to be arranged with my associate following the provision of the joint report of experts.

CASES CITED: Boardman v SESAHS [2001] NSWSC 930
Booth v De Francesco [2002] NSWSC 145
Spasovic v Sydney Adventist Hospital [2002] NSWSC 164

PARTIES :
Randa Mary Habelrih (1st Plaintiff)
Elias A. Habelrih (2nd Plaintiff)
Richard Habelrih (by his tutor Vanda Mary Maloof) (3rd Plaintiff)
Dr Alex Szirt (1st Defendant)
St Margaret's Hospital Limited (In Liquidation) (2nd Defendant)
Catholic Church Insurances Limited (3rd Defendant)

FILE NUMBER(S): SC 20273/99

COUNSEL: D. Hirsch (Plaintiffs)
M. McHugh (1st Defendant)
S. Davis (2nd, 3rd Defendant)

SOLICITORS: Maurice Blackburn Cashman (Plaintiffs)
Blake Dawson Waldron (1st Defendant)
Ebsworth & Ebsworth (2nd, 3rd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Wednesday 18 February 2004

20273/99 RANDA MARY HABELRIH & ORS v DR ALEX SZIRT & ORS
JUDGMENT

1 HIS HONOUR: There are two applications to be determined by the Court:

(a) the first defendant’s application for the appointment of a joint conference of expert witnesses;

2 The third defendant consents to the orders sought in each of the motions; the plaintiffs oppose the making of an order for a joint conference of expert witnesses and the first defendant opposes an order for mediation.

3 In this cause the first plaintiff is the mother of the third plaintiff and the second plaintiff is the husband of the first plaintiff and the father of the third plaintiff. The third plaintiff was born at St…

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: [2004] NSWSC 54
Decision Date: 18 February 2004

CaseChat Overview and Summary

In the case of Habelrih & Ors v Szirt & Ors, the Supreme Court of New South Wales was tasked with deciding two applications: the first defendant’s application for the appointment of a joint conference of expert witnesses and the plaintiffs’ application for mediation. The case involves allegations of professional negligence against Dr Alex Szirt, a specialist obstetrician and gynaecologist, and St Margaret's Hospital Limited, among others. The critical issue pertains to the alleged delay in obtaining a chest x-ray for the third plaintiff, Richard Habelrih, post-birth, which is claimed to have led to his neurological disability due to persistent pulmonary hypertension.

The legal issues before the court included whether a joint conference of expert witnesses would be beneficial in narrowing the complex medical issues and whether mediation should proceed before or after the joint conference. The first defendant argued that a joint conference could potentially resolve key medical disputes, particularly regarding the origin of the persistent pulmonary hypertension, which could either be primary or secondary due to hypoxia. The plaintiffs, however, opposed the joint conference, arguing that the experts had ample opportunity to consider each other's opinions and that the conference was unlikely to achieve its intended purpose.

The court, after considering the medical reports and the submissions from both sides, concluded that there was a reasonable expectation that the joint conference could achieve one or more of the objectives outlined in Practice Note 121. The court ordered the appointment of a joint conference of expert witnesses, to be chaired by an independent person, and directed the experts to endeavour to reach agreement on specific questions related to the case. The court also granted liberty to the parties to apply if there was a failure to agree on the conference questions or the independent chairperson. The plaintiffs' motion for mediation was stood over pending the outcome of the joint conference.

In summary, the court ordered the joint conference of expert witnesses and appointed an independent chairperson, while adjourning the mediation application until after the joint conference. The costs of the application concerning the joint conference were to be costs in the cause.

Orders