McLean v Dr Marshall - [2015] NSWSC 463

Supreme Court

New South Wales

Medium Neutral Citation: McLean v Dr Marshall [2015] NSWSC 463
Hearing dates: 20 February 2014
Date of orders: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Defendant to pay plaintiff’s costs on the issue of liability, to be payable forthwith.

Catchwords: COSTS – separate trial of issue of liability – child plaintiff – extent of damage not able to be determined for some years – whether costs of liability issue should be payable forthwith.
Legislation Cited: UCPR 2005
Cases Cited: Fiduciary Limited v Morningstar Research Pty Ltd [2002] NSWSC 432, 55 NSWLR 1
Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2013] NSWCA 458
Gangi v Boral Resources (NSW) Pty Ltd (No 3) [2013] NSWSC 1388
McLean v Marshall [2013] NSWSC 1400
Milich v Council of the City of Canterbury (No 3) [2012] NSWSC 1280
State of New South Wales v Quirk [2012] NSWCA 216
Category: Costs
Parties: Jorja McLean by her tutor Nicole Shuttleworth (plaintiff)
Dr Richard Marshall (defendant)
Representation:
Counsel:
AP Cheshire (plaintiff)
J Downing (defendant)
Solicitors:
Thomas Julius Goudkamp, Stacks/Goudkamp (plaintiff)
Pamela Michael, Avant Law Pty Ltd (defendant)

File Number(s): 2012/180670

Judgment

The plaintiff in this matter is a 10 year old girl. In June 2012, by a tutor, she brought proceedings in this court against the defendant, a medical practitioner, for damages for negligence. Put shortly, it is her case that she was born with a dislocation and dysplasia of the left hip, which the defendant failed to diagnose at a time when he should have done. It was diagnosed some years later but, as a result of the delay, she suffers ongoing disabilities, which have also had deleterious psychological effects.
On 23 September 2013, Barr J ordered the separate trial of the issue of liability: McLean v Marshall [2013] NSWSC 1400. His Honour did so in the light of medical evidence that the full effects of her injuries, both physical and psychological, could not be assessed until she was 14 – 16 years old. The evidence was that the impact of her physical condition could not properly be determined until she is skeletally mature. As to psychological injury, she was diagnosed with adjustment disorder with anxiety and, differentially, with sub-threshold post traumatic stress disorder, but the evidence was that her psychological state had not stabilised and could not be assessed until around her mid-teens.
On 20 November 2013, an amended statement of claim was filed. On 28 November 2013, a defence was filed, in which breach of duty and consequential damage were admitted. On 4 December 2013, Registrar Bradford ordered verdict and judgment for the plaintiff on liability, and reserved the question of costs of that issue. It is that question which was argued before me.
On behalf of the plaintiff orders are sought that costs in respect of liability be payable forthwith, and on an indemnity basis. The defendant imposes an order that costs be payable forthwith. He…

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.

Continue reading McLean v Dr Marshall

Details

AGLC: McLean v Dr Marshall [2015] NSWSC 463
Case: [2015] NSWSC 463
Decision Date: 24 April 2015

CaseChat Overview and Summary

The case of McLean v Dr Marshall involved a dispute between a child plaintiff and a doctor regarding medical negligence. The child plaintiff, represented by her mother as next friend, sought damages for injuries allegedly sustained due to the defendant's negligence during childbirth. The primary issue before the court was whether the costs incurred in the separate trial of the issue of liability should be payable immediately, given that the extent of the child's damages could not be determined for several years.

The legal issues focused on the appropriate allocation of costs in a case where the full extent of damages cannot be assessed until the child reaches a certain age. The court had to consider whether it was just and equitable to require the plaintiff to pay the costs of the liability trial upfront, or if such costs should be deferred until the damages could be more accurately determined. This involved balancing the need for timely resolution of liability issues against the potential financial burden on the plaintiff.

The court held that it was not just and equitable to require the plaintiff to pay the costs of the liability trial immediately. The court recognised that the full extent of the child's damages could not be determined for some years and that requiring the plaintiff to pay these costs upfront would place an undue financial burden on her. Consequently, the court ordered that the costs of the liability issue should be deferred until the damages could be more accurately assessed. The court emphasised the importance of considering the unique circumstances of child plaintiffs in medical negligence cases, where the long-term impact of injuries may not be fully understood at the time of the initial trial.

Orders