Murphy v Chow - [2003] NSWSC 303

CITATION: Murphy & Ors v Chow [2003] NSWSC 303

HEARING DATE(S): 10 March 2003

JUDGMENT DATE:
15 April 2003

JURISDICTION:
Common Law Division
Professonal Negligence List

JUDGMENT OF: Studdert J

DECISION: Notice of motion dismissed; costs of the motion to be plaintiff's costs in the cause.

CASES CITED: Idoport Pty Limited v National Australia Bank Limited & Ors [2000] NSWSC 1215
Perre & Ors v Apand (1999) 198 CLR 180
Tepko Pty Limited & Ors v The Water Board (2001) 206 CLR 1

PARTIES :
Katie-Tara Murphy by her tutor Vincent Murphy (1st Plaintiff)
Karen Murphy (2nd Plaintiff)
Vincent Murphy (3rd Plaintiff)
David Chun Wan Chow (Defendant)

FILE NUMBER(S): SC 20122/99

COUNSEL: L. Levy SC/S. Fonti (Plaintiffs)
I. Pike (Defendant)

SOLICITORS: Charlton Shearman (Plaintiffs)
Blake Dawson Waldron (Defendant)

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

STUDDERT J

Tuesday 15 April 2003

20122/99 KATIE-TARA MURPHY by her tutor VINCENT MURPHY & ORS v DAVID CHUN WAN CHOW
JUDGMENT

1 HIS HONOUR: The defendant in this matter has applied by way of notice of motion for orders:

“1. That there be separate trials on the question of

(a) liability and causation; and

(b) damages.

2. Such further or other orders as the Court sees fit.”

2 The application, pursuant to Part 31 rule 2, is opposed.

3 The defendant is a medical practitioner and was carrying on general practice at the Tindale Street Medical Centre in Penrith. It is alleged that at approximately 7.30 pm on 29 May 1998 the second and the third plaintiffs and their ten months old daughter, who is the first plaintiff, attended at the defendant’s surgery seeking attention for the infant plaintiff. It is the plaintiffs’ case that the defendant was negligent in his treatment of the infant plaintiff, that he failed to conduct an adequate examination of her, that he failed to carry out adequate investigation and that he failed to diagnose a meningococcal condition. The first plaintiff was allowed to go home with her parents after the examination and central to the plaintiffs’ case is that the first plaintiff should have been admitted to hospital immediately for the purpose of necessary tests and examination. Had there been earlier detection of the disease which was afflicting her, it is contended that earlier and effective treatment would have avoided septicaemia which tragically led to below knee amputations and amputation of parts of all the fingers of each of the first plaintiff’s hands. The claims of the second and the third plaintiffs are claims which depend upon the issue of liability being established in favour of the first plaintiff.

4 The evidence upon which the defendant relied in support of the motion comprised the following: affidavits of Rebecca Barnes affirmed on 28 January and 4 March 2003; an affidavit of Benjamin Cran sworn on 27 May 2002; and affidavits of Keely Louise Graham sworn 6 December 2001 and 27 February 2002. The plaintiffs relied upon affidavits of Andrea Omerou sworn…

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 Murphy v Chow

Details

AGLC: Murphy v Chow [2003] NSWSC 303
Case: [2003] NSWSC 303
Decision Date: 15 April 2003

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiffs Katie-Tara Murphy, represented by her tutor Vincent Murphy, Karen Murphy, and Vincent Murphy, have brought a professional negligence claim against the defendant, David Chun Wan Chow, a medical practitioner. The plaintiffs allege that the defendant's negligence in treating the infant Katie-Tara, who suffered from meningococcal septicaemia, led to severe injuries including below knee amputations and the loss of fingers. The plaintiffs argue that Katie-Tara should have been admitted to hospital for further tests and treatment, which could have prevented the severe outcome.

The central issue before the court was whether to grant the defendant's application for a separate trial on the questions of liability and causation, and damages. The defendant argued that a separate trial would be more efficient and economical, potentially saving time and costs if the plaintiffs lost on the liability issues. The plaintiffs, however, opposed the motion, arguing that the issues of liability, causation, and damages were inextricably linked, and a separate trial would not necessarily avoid overlap or save significant time or costs.

Studdert J, in dismissing the defendant's application, considered the principles of case management and the overriding objective of the Supreme Court Rules to achieve a just, quick, and cheap resolution of the real issues. The court found that while separate trials might be appropriate in certain circumstances, the present case did not meet the criteria for such an order. The court noted that the issues of liability, causation, and damages were intertwined, and separating them would not avoid the need to revisit key factual and expert issues. Moreover, the court was not persuaded that a separate trial would result in significant savings in time or costs, or that it would facilitate a quicker resolution of the case.

The court concluded that the notice of motion should be dismissed and ordered that the costs of the motion be the plaintiffs' costs in the cause. The decision underscores the importance of a holistic approach to trial management, particularly in complex cases where issues of liability, causation, and damages are closely interlinked.

Orders