McLean v Marshall

[2013] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation:

McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400

Hearing dates:

3 September 2013

Decision date:

23 September 2013

Before:

Barr AJ

Decision:

1. The issue of liability to be determined separately from the issue of damages;

2. Refer the matter to the Registrar for a date to be set down for hearing;

3. Order that costs of the Motion be costs in the proceedings.

Catchwords:

PRACTICE AND PROCEDURE- negligence claim- separation of issues- whether liability should be determined separately from damages

Legislation Cited:

Limitation Act 1969
Uniform Civil Procedure Rules

Cases Cited:

Idoport Pty Ltd & Ors v National Australia Bank & Ors [2000] NSWSC 1215
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Thomas v Oakley [2003] NSWSC 1033

Category:

Principal judgment

Parties:

Jorja McLean (Plaintiff)
Dr Richard Marshall (Defendant)

Representation:

Counsel:
A P Cheshire (Plaintiff)
J Downing (Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Avant Law (Defendant)

File Number(s):

2012/180670

Publication restriction:

None

Judgment

1. The plaintiff was born on 4 August 2004 and is now nine years old. It is asserted that she was born with a dislocation and dysplasia of the left hip.

1. The defendant was a general medical practitioner, specialising in obstetric and paediatric medicine. It is asserted that he examined the plaintiff on 5 August 2004. The tests he performed included a test for hip dysplasia. He reported her hips as normal. On 20 September 2004 a nurse employed by the defendant carried out on her a six to eight week health check which included testing the hips for dislocation. Her hips were recorded as normal. On 29 March 2005 another nurse employed by the defendant carried out on the plaintiff a six to eight month health check which included testing the hips for dislocation. Her hips were recorded as normal.

1. On September 2005 the plaintiff attended the defendant's practice. She was examined there and a report was made about an extra fatty fold at the top of the left leg. On 13 January 2006 the plaintiff's mother told the defendant that the plaintiff was walking in a wonky fashion, leaning to the left, and was knock-kneed with her toes turned in, also that her legs were of different lengths. The defendant noted that the plaintiff was knock-kneed, was becoming pigeon-toed with a wobbly walk, was intoeing, could run but tended to trip from a standing start and had a swinging gait, but no Trendelenburg. The defendant measured the plaintiff's legs and advised that there was a small discrepancy in leg length which was insignificant and within the normal range. He advised a review after a further six months.

1. In August 2009 the plaintiff was diagnosed with a dislocation and dysplasia of the left hip.

1. The plaintiff asserts that the dysplasia and dislocation were present by 13 January 2006 at the latest…