Nicole Maree Yarran as Administrator of the Estate of Ayvah Justine Heather Yarran v Joondalup Hospital Pty Ltd - [2022] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   NICOLE MAREE YARRAN as Administrator of the Estate of AYVAH JUSTINE HEATHER YARRAN -v- JOONDALUP HOSPITAL PTY LTD [2022] WADC 59
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   16 JUNE 2022
DELIVERED          :   29 JUNE 2022
FILE NO/S:   CIV 1599 of 2019
BETWEEN:   NICOLE MAREE YARRAN as Administrator of the Estate of AYVAH JUSTINE HEATHER YARRAN
First Plaintiff

NICOLE MAREE YARRAN
Second Plaintiff

DANIEL MCDOUGALL
Third Plaintiff

DEBORAH SUSAN YARRAN
Fourth Plaintiff

AND

JOONDALUP HOSPITAL PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for further and better discovery - Adequacy of affidavit in support - Relevance - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed with the exception of a number of items conceded

Representation:

Counsel:

First Plaintiff	:	Mr R D McCabe
Second Plaintiff	:	Mr R D McCabe
Third Plaintiff	:	Mr R D McCabe
Fourth Plaintiff	:	Mr R D McCabe
Defendant	:	Mr M L Williams

Solicitors:

First Plaintiff	:	Shine Lawyers Medical Law (Brisbane)
Second Plaintiff	:	Shine Lawyers Medical Law (Brisbane)
Third Plaintiff	:	Shine Lawyers Medical Law (Brisbane)
Fourth Plaintiff	:	Shine Lawyers Medical Law (Brisbane)
Defendant	:	Minter Ellison

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

On 5 May 2016 Nicole Maree Yarran gave birth to a child named Ayvah Justine Heather Yarran. That child had profound injuries which were caused by an interruption to the blood supply within her mother's womb and which the plaintiffs allege could have been avoided by more appropriate medical treatment. In particular, the plaintiffs allege that significant delays within the defendant hospital and the failure to implement a Caesarean birth at an early stage were to blame for the state of affairs, and those delays were due to the negligence of the defendant.
The defendant's position is that delays in the hospital, if there were any, were not the cause of the injuries to the child but due to an event which took place in the hospital and which was recorded by a monitor operating at the time. If there were earlier delays, which is not admitted, the defendant says they were of no relevance to the ultimate outcome and were not causally linked to that outcome.
The plaintiffs contend by their application filed 2 February 2022[1] that the discovery given by the defendant is inadequate and further and better discovery should be given in the terms of the application. Those terms are extremely extensive, and I reproduce them below.
[1] Plaintiff's chamber summons for order for provision of the defendant's discovery pursuant to O 26 r 4, r 6, and r 7 of the Rules of the Supreme Court 1971 (WA).
2.…
(a)any and all records dated 5 May 2016 that confirm the Second Plaintiff's presentation to the Defendant's Emergency Department, including but not limited to:
(i)      any documentation (including CCTV footage) that confirms the Second Plaintiff's arrival at 5.09pm;
(ii)     any documentation from the Defendant's Emergency Department Information System (EDIS), including the clinical screen;
(iii)    Emergency Department Patient Information Sheet;
(iv)    Emergency Department Triage/Nursing Assessment Form HR 162-0;
(v)     any documentation that confirms the Second Plaintiff was triaged at 5.22pm;
(vi)    Emergency Department Medical Assessment;
(vii) Integrated Progress Notes;
(viii) any documentation of the purported discussion between the Second Plaintiff and a Nurse or Waiting Room Nurse (WRN) in the Emergency Department's waiting room at around 5.10pm;
(ix)    Adult Observation Chart Early Warning System (EWS) before 2130hrs;
(x)     Emergency Department Discharge Summary/ Referral;
(xi)    any documentation of the purported discussion between the triage nurse and a midwife relating to the Second Plaintiff's transfer to Birth Suite;
(xii) any documentation of the agreed actions following that purported discussion;
(xiii) any documentation relating to the Second Plaintiff being escorted from the Emergency Department at 5.27pm;
(b) any and all records dated 5 May 2016 that confirm the Second Plaintiff's arrival and/or admission to the Defendant's public patient birth suite at 5.33pm, including but not limited to:
(i)      Patient Information Sheet;
(ii)     Antenatal Presentation Sheet;
(iii)    Medical Assessment; and
(iv)    Integrated Progress Notes;
(c) any policy relating to telephone advice to pregnancy patients developed since 5 May 2016;
(d) any and all documentation relating to education to be provided to midwives in relation to the completion of the telephone assessment tool developed since 5 May 2016;
(e) any policy relating to the triage of pregnant women in the Defendant's public patient birth suite in place on 5 May 2016;
(f) any policy relating to the triage of pregnant women in the Defendant's public patient birth suite developed since 5 May 2016;
(g) any and all policy and other documentation relating to patient capacity at the Defendant's public patient birth suite;
(h) any and all policy and other documentation relating to staff : patient ratio at the Defendant's public patient birth suite and public Obstetric & Gynaecology (O&G) ward (ward C2);
(i) all documentation relating to the number of patients in the public patient birth suite and public O&G ward on 5 May 2016 between 2.50pm and 8.30pm;
(j) any and all documentation, including rosters, relating to the numbers, qualifications and roles of all obstetric, midwifery and other staff working on 5 May 2016 between 2.50pm and 8.30pm in the:
(i)      public patient birth suite; and
(ii)     O&G ward
(k) MyTime Timecard records for:
(i)      Nicola Barker; and
(ii)     Louise Bounds
(l) all documentation relating to the patients in the public patient birth suite who were treated by the obstetric, midwifery and other staff working on 5 May 2016 between 2.50pm and 8.30pm;
(m) all documentation relating to the number of CTG machines available for use within the public patient birth suite and O&G ward on 5 May 2016;
(n) with regards to the Obstetric & Neonatal Emergency Team ('ONET') on 5 May 2016, any and all documents relating to:
(i)      the number of ONETs working on 5 May 2016 between 2.50pm and 8.30pm;
(ii)     the obstetric, midwifery and other staff who made up each team;
(iii)    the obstetric, midwifery and other staff who responded to the MET call at 1659hrs;
(iv)    the obstetric, midwifery and other staff who responded to the ONET call at 1733hrs;
(v)     the obstetric, midwifery and other staff who responded to the ONET call at 1846hrs;
(vi)    the obstetric, midwifery and other staff who responded to the ONET call at 1854hrs;
(vii) the MET Call Follow-up Report; and
(viii) electronic clinical incident report (Riskman)
(o) any and all records relating to the 'MET call for cervical shock' referred to by Dr Jape in his retrospective note at 1945hrs on 5 May 2016, including but not limited to:
(i)      the time the MET call for cervical shock was made;
(ii)     the obstetric, midwifery and other staff who responded to the MET call;
(iii)    the location within the Defendant's hospital that this MET call was attended to;
(iv)    the period of time the staff who responded to the MET call were with the patient with cervical shock;
(p) any documentation which exists that evidence ONET and/or MET call logs for theatres, specifically for the 'pt already induced in theatre 3 for D&C';
(q) with regard to the SAC1 Clinical Incident Investigation Report completed on 7 July 2016:
(i)      the completed SAC 1 Clinical incident notification form;
(ii)     any and all documentation created for the purposes of the completion of the report, and/or related to its creation, including but not limited to file notes, witness statements, recordings of interviews, and written communication;
(r) with regard to the conclusions of the Open Disclosure Meeting on 7 June 2016, any and all documentation including, but not limited to:
(i)      any and all documentation created for the purposes of Dr Bridget Jeffrey's investigation into the care provided to the Second Plaintiff and the subsequent meeting she had with the Second and Fourth Plaintiffs on 7 June 2016;
(ii)     the review and outcome of any such review of the telephone call assessment system and/or a triage system in the Birth Suite which was undertaken by Dr Neepe and/or Dr Jeffrey;
(iii)    the review and outcome of any such review undertaken by Dr Jeffrey;
(iv)    any communications purportedly with the Second Plaintiff following such reviews;
(v)     the review and outcome of any such review undertaken by Ms Harden;
3. The Defendant is to discover all documentation that encompasses document 1121 of the Defendant’s Informal List of Discoverable Documents signed 9 September 2020 by:
(a) Listing each communication;
(b) Stating the form in which the communication is contained, stored or recorded, whether it is an original or a copy and the date when each was made;
(c) Identifying the persons between whom the communication or communication were made; and
(d) Providing evidence as to the basis of the claim for legal professional privilege.
Insofar as the plaintiffs seek a sworn affidavit of discovery that has been provided by the affidavit of Kevin James Hartley which is dated 9 June 2022 and filed in these proceedings. That is an extensive document which identifies in excess of 1,100 documents.
The plaintiffs' application is supported by the affidavit of Wendy Jane Nixson, affirmed 2 February 2022. Ms Nixson is a solicitor working for the firm of Shine Lawyers in Brisbane. The affidavit contains a considerable number of annexures and totals some 261 pages. A great many of those pages contain copies of emails passing between the parties relevant to the issues which are now before me.
I now turn to a brief discussion of the legal principles which govern an application for further and better discovery. On this point there is little difference between the parties. The onus in such an application lies on the applicant and in order to succeed it is necessary for the applicant to satisfy me that there are reasonable grounds to be fairly certain that additional documents beyond those disclosed by the affidavit exist, are relevant and are or have been in the possession, custody or control of the respondent to the application. The authority to make an order for further and better discovery is to be found in O 26 of the Rules of the Supreme Court 1971 (WA).
It is therefore necessary for me to consider the documents which are sought and what issues raised by the pleadings they might be relevant to. In that regard it is necessary to consider what are the real issues in this case. The plaintiffs' case is that there were delays caused through the negligence of the defendant which meant that a Caesarean section to deliver the first plaintiff was not undertaken in a timely way and was causative of the injuries suffered by the first plaintiff.
The defendant defends on the basis that the evidence suggests that the injuries which were suffered by the first plaintiff were suffered over a short period of time whilst in the birthing suite and a Caesarean section would not have been appropriate until it became clear that the first plaintiff was in distress and needed to be delivered immediately. The defendant says that was not the case throughout the period of the second plaintiff's stay in the hospital and was an event which occurred after she was in the birthing suite and, although at first the first plaintiff showed a satisfactory pulse rate, that ceased to be the case and it was at that point and only that point, that an emergency Caesarean was called for and was performed.
There is some controversy between the parties about exactly when the second plaintiff first attended the hospital, when she was triaged, whether there was negligence in that process and in an earlier process involving a telephone call which the second plaintiff made to the hospital and matters of that kind.
The position adopted by the defendant to this application is that none of the matters to which this further and better discovery is directed are relevant to the case.
It is pleaded by the plaintiffs that the Caesarean section should have been undertaken immediately she presented to the emergency department at the hospital, namely approximately 17:00 hours and that the failure to do so was negligent and the cause of the first plaintiff's injuries.
As I have previously indicated, the defendant advances a different proposition. The defendant says that the need to perform the Caesarean section only arose whilst the second plaintiff was in the birthing suite and she was immediately transferred to an operating theatre where the Caesarean section took place.
In effect then, the defendant contests that the concern of the plaintiffs about the exact times when various events took place such as the second plaintiff's arrival at the emergency department, when she was triaged, and matters of that kind cease to have any particular relevance. The defendant's case is quite clear and easy to understand and that is that the emergency which required intervention by way of Caesarean section occurred whilst the second plaintiff was in the birthing suite and previous delays, if there were any, were not the cause of that event.
Additionally, the defendant says, as appears to be supported by the documentation, that the second plaintiff was not admitted to the emergency department but was admitted to the birthing suite. That explains why there are not records from the emergency department as are sought by the plaintiffs, because there are no such records since the second plaintiff was not admitted to that department and such records as have been discovered relate to and comprise the total of the records from the section to which she was admitted.
I pause to note that a number of documents which are sought by the application are conceded to exist by the defendant and the defendant has agreed to give discovery of those documents, although it does not concede the relevance of those documents.
The first document concerns CCTV footage concerning the second plaintiff's arrival at the hospital. As I have said, the relevance of this material is not conceded by the defendant and it previously stated that the footage had been overwritten as a routine procedure. It may be however that a copy of that footage does exist, and the defendant has indicated that it will make enquiries, and if that copy comes to light will make it available to the plaintiff.
The next matter is identified in par 2(a)(iv) of the documents sought, that being an emergency department triage/nursing assessment form HR‑162-0.
Moving on to pars 2(c), 2(d) and 2(e), the defendant agrees to give discovery of those documents and in par 2(q) it agrees to give discovery of an SAC1 clinical incident investigation report. Thereafter no concessions are offered by the defendant, and in regard to these matters the defendant points out that they were not raised prior to the application being brought, although many other points were, and that there was no conferral on these points and that should have a bearing on any costs order which I might be inclined to make.
I now turn to the specifics of the plaintiffs' complainant about the lack of documentation from the defendant's emergency department. The evidence relied upon by the plaintiffs to support their allegations that further documents exist appears to be based entirely on the experience of the practitioner who swore the affidavit in support of the application. That solicitor has been in practice for some 14 years and apparently worked in the medical negligence section of the plaintiffs' solicitors. In essence, the affidavit expresses the opinion of the solicitor conducting the case, based on what she has seen in other cases, it is likely for there to be more documents than have in fact been identified by the defendant. The probative value of that testimony must inevitably be suspect. It can hardly be called the impartial opinion of an expert but rather the view of a lawyer who entered this matter for trial certifying in September 2020 that discovery and inspection had been given and the plaintiffs did not require any other interlocutory orders to be made. Those statements set out in the certificate are obviously rather at odds to what the same lawyer now says in support of this application.
The matter comes down to a contest between the evidence of a solicitor who certified to the court that no interlocutory applications were required and now advances her expert opinion which is wildly different to that proposition. It is not clear to me exactly what experience the solicitor has when it comes to the notetaking habits of hospitals in Western Australia.
Against this evidence I have the sworn testimony of Mr Kevin James Hartley, sworn on 9 June of this year, in which he says under oath that complete discovery has been given. As I understand the law, such testimony as has been given by Mr Hartley should only be displaced if cogent contradictory evidence is provided. In my view the evidence advanced by the plaintiffs is insufficient to persuade me that Mr Hartley's affidavit is deficient.
A further factor affecting the issue is the fact that it appears that the second plaintiff was never admitted to the emergency department of the defendant but was immediately placed in a birthing suite and information concerning that admission has been discovered, albeit by way of notes which were not contemporaneous with the admission.
My conclusion therefore is that, save to the extent that the defendant has made concessions, the application contained in par 2(a) should be dismissed. Likewise, I consider that the application contained in par 2(b) should also be dismissed and for the same reasons. Paragraphs 2(g) - 2(l) concerning the perception which has been created in the minds of the solicitors representing the plaintiffs that what is alleged to have been delays in dealing with the second plaintiff were due to various staffing problems and other matters. This perception appears to wholly flow from some expert opinions which have been advanced by experts engaged by the defendant. Those experts were not asked to make any observations about staffing levels or emergencies within the hospital on the relevant date. The information which was provided to the experts makes no suggestion that was the case, and it is clearly not the case that the defendant intends to rely on any staffing pressures, emergencies or anything else of that kind as a reason for the delays of which the plaintiffs complain. That is borne out by the fact that the defendant has not pleaded in its defence any suggestion that the delays in the defendant hospital were caused by pressures or emergencies or other problems which were not of its making and over which it had no control. Accordingly, all these issues are not relevant to the case and insofar as they are sought in the paragraphs I have identified, I refuse the application.
I next turn to par 2(m) which relates to the number of CTG machines available for use on the relevant day. In fact shortly after she was admitted to the birthing suite, the second plaintiff was hooked up to a CTG machine and it is the readings of that machine upon which the defendant relies to substantiate its defence that the failure of the blood supply to the first plaintiff was a sudden event recorded by the machine and not related to any delays which occurred prior to that stage. Therefore, in my view the number of machines available is irrelevant and I will dismiss that part of the application.

As to par 2(o), it appears not to be the case that the second plaintiff suffered cervical shock and therefore the question is focussed on staffing levels which are not relied upon as any defence by the defendant in this case which could only be the relevance of this material. For that reason, I dismiss the order sought in par 2(o).
Paragraph 2(p) seeks certain documents which the defence alleges have already been discovered. As to par 2(q)(i), this is one of the matters which the defendant has conceded although as I have mentioned, with the caveat as to its relevance.
As to par 2(r), in my view the evidence produced is insufficient to support the claim that the discovery is deficient. I do however recognise the position may change when the issue of privilege is determined and I leave that aspect of the application open for reconsideration when the privilege question is dealt with.
The next issue is whether or not the defendant's claim for privilege in the affidavit of discovery[2] which has been filed is sustainable. That is a matter with which I was unable to deal on the hearing of the application, it being necessary for the defendant to amplify its claim for privilege, the documents not being available for me to inspect, and the fact that the application ran from 11.00 am to 4.00 pm and there would not have been time to deal with this aspect of the matter in any event. For that reason, the question of upholding or overturning the claim to privilege will have to await another day and another hearing before another registrar.
[2] Affidavit of Kevin James Hartley verifying defendant's list of discoverable documents, lodged 9 July 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate
28 JUNE 2022