King v SESAHS - [2003] NSWSC 254

CITATION: King v SESAHS [2003] NSWSC 254

HEARING DATE(S): 7 March 2003

JUDGMENT DATE:
4 April 2003

JURISDICTION:
Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: Order that the jury be dispensed with. Costs of the motion are reserved.

CATCHWORDS: Practice and procedure - claim for damages for professional negligence - application to dispense with trial by jury - complexity of issues.

LEGISLATION CITED: Courts Legislation Amendment (Civil Juries) Act, 2001
District Courts Act, s 79A
Supreme Court Act, 1970, ss 85-89

CASES CITED: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Combined Excavations & Supplies v Bowis [2000] NSWCA 298
Pambula District Hospital v Herriman (1988) 14 NSWLR 387

PARTIES :
Monique Frances King by her tutor Michele King (Plaintiff)
South Eastern Sydney Area Health Service (1st Defendant)
Richard O'Gorman-Hughes as Executor of the Estate of the late Professor Darcy O'Gorman Hughes (2nd Defendant)

FILE NUMBER(S): SC 18475/93

COUNSEL: P. Blacket SC/M. Walsh (Plaintiff)
S. Kalfus (1st Defendant)
D. Davies SC (2nd Defendant)

SOLICITORS: Turner Freeman (Plaintiff)
Lynn Boyd (1st Defendant)
Tress Cocks & Maddox (2nd Defendant)

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

STUDDERT J

Friday 4 April 2003

18475/93 MONIQUE FRANCES KING by her tutor MICHELE KING v SOUTH EASTERN SYDNEY AREA HEALTH SERVICE & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff, Monique Frances King, has brought proceedings against the first defendant, South Eastern Sydney Area Health Service, and the second defendant, Richard O’Gorman Hughes as the executor of the estate of the late Professor Darcy O’Gorman Hughes, and claims damages for negligence concerning treatment provided to the plaintiff at the Prince of Wales Hospital in 1989. Each of the defendants deny liability.

2 The second defendant has now applied by notice of motion for an order that the jury be dispensed with. In making that application the second defendant is supported by the first defendant but the plaintiff, who requisitioned a jury to try this cause, resists the order now sought.

3 These proceedings were commenced in 1993 and the plaintiff filed her requisition for trial by jury on 11 October 1993. Since that time of course the Courts Legislation Amendment (Civil Juries) Act, 2001 (to which I shall refer as the “Civil Juries Act”) has been enacted and by that Act the earlier provisions concerning trial by jury to be found in ss 85-89 of the Supreme Court Act, 1970 were repealed. However, a saving provision in the Civil Juries Act reserves those earlier provisions of the Supreme Court Act 1970 concerning “proceedings commenced but not finally determined before the commencement of that amendment as if the section had not been amended”. The Civil Juries Act commenced in 18 January 2002.

4 For relevant purposes then, s 85(1) of the Supreme Court Act provided:

“Subject to sections 86, 87 and 88, proceedings in any Division shall be tried without a jury, unless the court otherwise orders…”

5 Section 86 provided,…

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: [2003] NSWSC 254
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the case of King v SESAHS, the plaintiff sought damages for alleged professional negligence by the defendant, a hospital, in the treatment of the plaintiff's deceased son. The dispute centred on whether the hospital's medical staff had breached their duty of care in treating the plaintiff's son, resulting in his death. The case was heard in the Supreme Court of South Australia. The plaintiff applied to dispense with trial by jury due to the complex medical and legal issues involved in the case.

The central legal issues the court had to address were whether the case was suitable for a jury trial, considering the complexity of the medical evidence and the need for expert testimony, and whether the trial should proceed with or without a jury. The court needed to determine whether the issues were so complex that only a judge could properly understand and decide them, or whether a jury, with appropriate guidance, could do so.

The court found that the case indeed involved intricate medical issues and required significant expert testimony. The court considered the nature of the evidence, the potential for confusion among laypersons, and the need for detailed legal instructions to a jury. The court concluded that the complexity of the issues and the potential for misunderstanding by a jury warranted dispensing with the jury trial. The judge alone would hear the case and make the final decision, ensuring a fair and just outcome based on the evidence presented.

The final orders of the court allowed the case to proceed without a jury, recognising the complexity of the issues and the need for a more specialised understanding of the medical and legal aspects involved. This decision facilitated a more efficient and effective trial process, given the nature of the evidence and the potential for misunderstanding by a jury.

Orders