Joseph Buksh v South Western Sydney Local Health Network; Rosemary Buksh v South Western Sydney Local Health Network; Stallone Buksh v South Western Sydney Local Health Network

[2016] NSWSC 603

Supreme Court

New South Wales

Medium Neutral Citation:	Joseph Buksh v South Western Sydney Local Health Network; Rosemary Buksh v South Western Sydney Local Health Network; Stallone Buksh v South Western Sydney Local Health Network [2016] NSWSC 603
Hearing dates:	2 May 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. A copy of the DVD depicting the birth of the plaintiff, Joseph Buksh, is to be made available to all experts that are to be participants in the Conclave. 2. Costs are to be costs in the cause.
Catchwords:	PRACTICE AND PROCEDURE – professional negligence - claim by plaintiffs for nervous shock - dispute as to whether expert conclave should be given access to DVD depicting birth of plaintiff – question of prejudice to defendants – ability of experts to consider and report upon additional evidence at a late stage – necessity of further examination of plaintiffs - copies of the DVD to be made available to all experts   COSTS – costs in the cause
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Joseph Buksh (Plaintiff) Rosemary Buksh (Plaintiff) Stallone Buksh (Plaintiff) South Western Sydney Local Health Network (Defendant)
Representation:	Counsel: Ms L Whalan (Plaintiffs) Mr S Woods (Defendant)
File Number(s):	2011/000493082011/001082302011/00108251
Publication restriction:	None

ex tempore Judgment

1. The matter of Buksh and the South Western Sydney Local Health Network has been referred to the Duty List this morning by the Registrar because of a dispute between the parties as to whether or not an expert conclave due to occur on two dates, 3 May 2016 and Thursday 5 May 2016, ought to have access to a DVD containing six minutes of footage depicting the birth of one of the plaintiffs, Joseph Buksh.

2. The matter relating to Joseph Buksh has settled in principal although given his status as a child, and a child under a disability, the negotiated settlement has yet to be approved by a judge of this Court. I am advised that the matter is due to go before Justice Harrison for that purpose.

3. Remaining for resolution will be the actions by Joseph Buksh's parents, Rosemary and Stallone Buksh. Mr and Ms Buksh make a claim on the basis of nervous shock as a consequence of what occurred at the birth of the their son.

4. The DVD which is at issue between the parties is a recording of the birth of the child plaintiff depicting the circumstances of the birth and particularly, as I understand it, focussing on the vacuum delivery technique which was utilised. I'm advised that in the background of the recording one can see the interaction of the adult plaintiffs, interaction which, it is contended, is relevant to an assessment of the present claims.

5. The plaintiffs contend that it is relevant for the expert psychiatrists who have examined each of the adult plaintiffs to see the DVD because it has the potential to inform their opinion as to the impact of the asserted negligence on the plaintiff's individually, and upon their relationship with each other. It is submitted that, as a six minute section of footage, it is not onerous to ask the experts to view this in readiness for the conclaves, and it is footage which they will be asked, or may be asked, to view for trial, or which would be tendered at trial.

6. There is no issue that service of the material is in time to comply with r 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The issue is that the material was not sought to be placed before the experts earlier than late April 2016 and, accordingly, the experts will not have an opportunity to both view the footage and re-examine each of the plaintiffs to question and examine them about any material which arises from the footage. In that the conclaves are to be held on 3 and 5 May 2016, it is undoubtedly so that there would be no opportunity for the doctors to view the footage, examine the patients, and still meet in conclave in accordance with the current timetable.

7. In opposing the material being submitted to the experts for their consideration the defendant contends that the doctors to meet at conclave ought to have had the opportunity earlier to see the DVD if, in fact, it was as critical as the plaintiffs now suggest.

8. Before the court is a schedule of the appointments that each plaintiff had with the respective experts and the date of production of the relevant report from those experts. The defendant submits that there was ample time for the material to be drawn to the attention of the experts so that each doctor or psychologist could examine the respective plaintiff, having been informed by the material contained within the DVD recording. There being no prospect now for any of the experts to view the material and interview the respective plaintiffs there would be prejudice to the defendant in permitting that approach.

9. Certainly the defendant’s complaint about the last minute nature of this request is well-founded. The matter has now been before the Court for some years, and even relatively recently the matter was before Justice Harrison for him to make rulings as to whether or not conclaves should be held. It would have been preferable, plainly, for the matter to be raised at least at a point at which Justice Harrison could have considered it when determining the issue of a conclave at a more basic level. The explanation for that delay, as advanced by Ms Whalan for the plaintiffs, is that the focus in these proceedings having been previously on liability, particularly in relation to Joseph Buksh, the child, the significance of the recording, more broadly, was overlooked. It is easy to see how that focus could result in the issue of nervous shock being given less attention when viewing the DVD.

10. I accept the defendant's contentions as to the lateness of the proposed provision of the DVD to the experts, and I acknowledge that it may be that the experts will consider that they are unable to make any sensible use of the material shown on the DVD without speaking to the respective plaintiffs and asking further questions of them. However, it seems to me perhaps a needlessly technical and restrictive approach to simply prevent the experts from seeing the material now and leaving the resolution of the issue until trial.

11. From the submissions as to what is described on the disc it is likely that the contents of the recording can at least inform some aspects of the consideration of the experts, and it is therefore of use that they see the material in time to discuss it at the forthcoming conclaves. If, as is suggested by the defendants, the doctors are unable, without direction, to understand the significance that the DVD may have, then it will be open for the experts to seek that direction. Additionally there will be nothing preventing the parties communicating with the experts prior to the conclave to advise them of the purpose in submitting the DVD to the conclave for viewing.

12. It seems as a general rule preferable that experts have all available material that may be of some relevance or significance prior to conclave so that the matters can be discussed and, if possible, any agreement or resolution of aspects of the evidence reached. To simply deny the material to the conclave at this point would make that impossible. Accordingly, I propose to grant the plaintiff's application and direct that a copy of the six minute DVD depicting the birth of the plaintiff, Joseph Buksh, be made available to all the experts who are participants in the conclave so they have an opportunity to view the material in so far as it is capable of informing the opinions that they reach in conclave.

COSTS

13. Orders having been made in relation to the material to go to the conclave, the defendant seeks an order for costs, specific to today's proceedings, to reflect the late advice from the plaintiff as to their intention to use the DVD to particularly inform the question of nervous shock to the plaintiffs.

14. Mr Woods contends that that having been articulated only today, the defendants were put into the position where they were obliged to bring the matter to the Court to determine, because of that late notice and that late advice. Ms Whalan for the plaintiff contends that costs should simply be costs in the cause because, notwithstanding any issue as to the late advice of the use to which the DVD was to be put, it should have been apparent to the defendant that the plaintiff's intention in that regard was sound, and there should have been no need for the Court to determine the matter.

15. Whether or not it is a wise choice to have the experts view the DVD at this early stage will probably only be fully made plain when the matter comes before the trial judge and is determined. There is an issue of late service but there are competing interests, both of them legitimate in terms of the costs of today, such that it seems this is a proper matter where costs ought be costs in the cause and they can be determined by the trial judge having regard to the ultimate disposition of the matter. Accordingly, costs are to be costs in the cause.

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Decision last updated: 11 May 2016