Porter v Phong Le - [2015] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation: Porter v Phong Le [2015] NSWSC 1218
Hearing dates: 25 August 2015
Date of orders: 25 August 2015
Decision date: 25 August 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The proceedings be listed for directions at 9.30am before Adamson J on 3 September 2015.
(2) The plaintiff's notice of motion dated 16 October 2014 be otherwise dismissed.
Catchwords: PRACTICE AND PROCEDURE – application for separate determination of whether defendant breached duty of care – complex medical negligence proceedings – causation said to be complex – time taken to litigate causation exceeds breach – overlap of evidence – application dismissed – best course to allocate a hearing date.
Legislation Cited: - Civil Procedure Act 2005
- Uniform Civil Procedure Rule – 28.2
Cases Cited: - Crawley v Vero Insurance Ltd [2012] NSWSC 593
- Neville v Lam (No 2) [2014] NSWSC 300
- Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 101
- Porter v Le [2010] NSWSC 998
- Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 883
- Southwell v Bennett [2010] NSWSC 1372
Category: Procedural and other rulings
Parties: Arthur George Porter b.h.t. Barbara Mottershead - Plaintiff
Dr Phong Le - Defendant
Representation:
Counsel:
D.E. Graham SC, T. Stevens – Plaintiff
J. Morris SC – Defendant
Solicitors:
Carroll & O’Dea – Plaintiff
Norton Rose Fulbright – Defendant

File Number(s): 2007/265150

ex tempore Judgment (revised from transcript)

This is an application by the plaintiff for an order pursuant to Uniform Civil Procedure Rule (“UCPR”) 28.2 that there be a separate determination of the question whether the defendant breached his duty of care to the plaintiff prior to all other issues in the proceedings including causation. The plaintiff seeks a number of consequential orders including that the trial of the breach question be expedited.

Background

On or about 26 July 2004 the plaintiff, Arthur Porter, consulted the defendant, Dr Le, a general practitioner. It is alleged he complained of nasal congestion and a sore throat and that Dr Le diagnosed him as having acute bacterial rhinosinusitis. Doctor Le prescribed an antibiotic as well as a corticosteroid, “Panafcort”.
On or about 31 July 2004, Mr Porter collapsed while attending the races at Rosehill. He was taken to hospital. Shortly after being admitted, he had abdominal surgery on a ruptured adrenal gland. According to his statement of claim, he was operated upon again on 1 August 2004, 3 August 2004 and 13 August 2004. While in hospital he was diagnosed with septicaemia caused by Klebsiella pneumoniae, multiple cerebral abscesses, renal abscesses and renal failure. It is said that the cerebral abscesses caused significant and permanent brain damage.
Mr Porter is currently in a nursing home. These proceedings are being conducted by a tutor on his behalf (see Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 101; “Porter No 2”).

The Proceedings

These proceedings were commenced in 2007.…

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 Porter v Phong Le

Details

AGLC: Porter v Phong Le [2015] NSWSC 1218
Case: [2015] NSWSC 1218
Decision Date: 25 August 2015

CaseChat Overview and Summary

The proceedings in Porter v Phong Le involved a medical negligence claim where the plaintiff alleged that the defendant's breach of duty caused her harm. The court was asked to consider whether the defendant breached their duty of care and, if so, whether this breach caused the plaintiff's injuries. Given the complexity of the medical issues and the overlap in evidence, the defendant sought a separate determination of the causation issue. However, the plaintiff argued against this, suggesting that the best course of action was to allocate a hearing date for the entire trial.

The primary legal issue before the court was whether to allow a separate determination of the causation issue in a complex medical negligence case. The court had to weigh the potential benefits of such a determination against the risk of further delaying an already protracted litigation process. A secondary issue was the potential overlap of evidence between the breach and causation stages, and how this might impact the overall efficiency and fairness of the proceedings.

The court found that while the causation issue in this case was indeed complex, the time taken to litigate the breach of duty had already exceeded that of causation. Moreover, the overlap of evidence between the two stages was significant. Given these factors, the court concluded that the best course of action was to allocate a hearing date for the entire trial, rather than separate the determination of the causation issue. The application for a separate determination was thus dismissed, with an order for the trial to proceed as scheduled.

Orders