KF By Her Tutor RF v Sydney Children's Hospital Specialty Network (known as the Children's Hospital Westmead)

Case •

[2011] NSWSC 874

•

04 August 2011

Supreme Court


New South Wales

Medium Neutral Citation: KF By Her Tutor RF v Sydney Children's Hospital Specialty Network (known as the Children's Hospital Westmead) and Anor [2011] NSWSC 874
Hearing dates:4 August 2011
Decision date: 04 August 2011
Before: Johnson J
Decision:

Leave refused for Plaintiff's legal representatives to discuss breach issues with Plaintiff's experts until provision of further joint breach experts' report

Catchwords: PRACTICE AND PROCEDURE - medical negligence claim - reconvened breach of duty experts' conference to take place - application by Plaintiff's legal representatives for leave to discuss breach issues with Plaintiff's experts before reconvened meeting and provision of final joint breach experts' report - relevant discretionary factors - leave refused
Legislation Cited: Practice Note SC Gen 11 "Joint Conferences of Expert Witnesses"
Cases Cited:

KF By Her Tutor RF v Royal Alexandria Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891

KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2011] NSWSC 399
Category:Interlocutory applications
Parties: KF by her next friend RF (Plaintiff)
Sydney Children's Hospital Specialty Network (known as the Children's Hospital Westmead) (First Defendant)
Dr Brian Kearney (Second Defendant)
Representation: Ms M Avenell (Plaintiff)
Mr S Woods (First Defendant)
Mr J Kirk; Ms V Thomas (Second Defendant)
Paul A Curtis & Co (Plaintiff)
General Insurance Law Limited (First Defendant)
Blake Dawson (Second Defendant)
File Number(s):2002/69388

Judgment

  1. JOHNSON J : These proceedings are once again before the Court for directions as part of the long-case management process. I have delivered a number of judgments with respect to various aspects of the litigation in the period during which proceedings have been before me for long-case management. (A general background to the proceedings may be found in my judgment KF By Her Tutor RF v Royal Alexandria Hospital for Children known as the Children's Hospital Westmead and Anor [2010] NSWSC 891).

  1. The hearing date now stands at 24 October 2011 with a five-week estimate. The parties have agreed today on a range of orders and amended orders which should be made to progress the matter towards that scheduled final hearing. I will, in due course, make those orders.

  1. There is one area of controversy. Counsel for the Plaintiff has submitted that an order should be made allowing the Plaintiff's legal representatives leave to confer with the Plaintiff's breach of duty experts, Dr Smith and Dr Levy, before 18 September 2011, being the scheduled date for the reconvened breach experts' joint conference. That application is opposed by counsel for the Defendants.

  1. The joint conference with respect to breach of duty in this litigation has taken an unusual turn, and has led to the making of an unusual order. There was a joint conference earlier this year, resulting in a report being provided which gave rise to controversy. An application came before Rothman J and in due course, again before me, where consideration was given to what course should be taken with respect to that joint report.

  1. In the end, a process was determined by the Court which involved a reconvened joint conference of the breach of duty experts for the purpose of clarifying responses. A facilitator (a lawyer independent of the parties to these proceedings) is to be appointed to attend and assist with that process: KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead and Anor [2011] NSWSC 399.

  1. There has been delay in the scheduling of the reconvened breach joint conference, because of the difficulty in identifying a date when the various experts could attend. That date has now been identified as 18 September 2011. I am told that, now that the date is known, the parties will move towards selection of a facilitator. If the parties cannot agree in that respect I will, in the near future, make an order appointing a facilitator.

  1. The legal representatives for the Plaintiff seek to confer with their breach experts in a manner which is, prima facie, inconsistent with paragraph 27 of Practice Note SC Gen 11 entitled "Joint Conferences of Expert Witnesses". Accordingly, they seek leave to do so.

  1. It is submitted that, if there is an inability to confer with those experts (on breach issues) until 25 September 2011 (when the joint report of the reconvened breach experts' conference will be furnished), then there will be prejudice suffered in the preparation of the Plaintiff's case for the hearing commencing on 24 October 2011.

  1. A fundamental purpose of the provisions in Practice Note SC Gen 11 is that the joint conference and joint reporting process should be undertaken without involvement of the legal representatives for the respective parties.

  1. In the present case, there is a heightened sensitivity to this process because of the steps which I have mentioned, involving the need for considerable care in the conduct of the reconvened joint conference and in the preparation of the report which will emerge from that conference.

  1. It seems to me that there is a particular need in this case for the Court to ensure that the joint conference process proceeds in the usual way.

  1. The Defendants do not submit that there would be any attempt by the Plaintiff's legal representatives to, in some way, affect or infect the joint breach expert conference if discussions took place. However, the problem will be that, with the best will in the world, if the Plaintiff's legal representatives can speak to the breach experts about breach issues before the provision of the joint report, there is a risk (at least) that there may be some discussion which affects that process. There is, at the very least, a perception of a risk of that sort.

  1. Accordingly, the usual procedure ought apply in this case.

  1. The suggested prejudice to the Plaintiff is, in any event, a fairly confined one. The joint report will be provided on 25 September 2011. There will be a further month thereafter before the hearing date, during which time communications with the breach experts may occur.

  1. As the Defendants have submitted, the scheduling of the hearing earlier this year (with a tight timetable) would have left the Plaintiff's legal representatives with no more time than will be available now to communicate with the breach experts. There is no particular prejudice arising from the maintenance of the usual procedure at this time.

  1. In any event, as the Defendants acknowledge, there is an ability in the meantime for the Plaintiff's legal representatives to discuss causation issues (as opposed to breach issues) with those experts.

  1. I refuse the application for leave for the Plaintiff's legal representatives to confer on breach issues with Dr Smith and Dr Levy prior to the provision of the further joint breach experts' report.

  1. I make Orders 1-13 in accordance with the Consent Orders signed by the legal representatives for the parties, which I have signed and dated today.

  1. I note that the matter remains listed for further directions before me, in accordance with Order 12 of the Consent Orders, on 20 September 2011 at 9.30 am.

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Decision last updated: 15 August 2011

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