Portia Gatti by her next friend Rebecca Gatti v Calvary Health Care Riverina Ltd; and Rebecca Gatti v Calvary Health Care Riverina Ltd
[2013] NSWSC 1077
•09 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Portia Gatti by her next friend Rebecca Gatti v Calvary Health Care Riverina Ltd; & Rebecca Gatti v Calvary Health Care Riverina Ltd [2013] NSWSC 1077 Hearing dates: 9 August 2013 Decision date: 09 August 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Plaintiffs' applications to have the proceedings transferred to the District Court refused and Amended Notices of Motion dismissed.
2. Costs to be the Defendants' costs in the cause.
Catchwords: PROCEDURE - application to transfer proceedings to District Court - medical negligence claims - claims by child and mother - problems arising from perinatal period - medical evidence unchanged since proceedings commenced - length of hearing in country sittings of District Court - need for judicial case management - applications refused Legislation Cited: Civil Procedure Act 2005 Category: Interlocutory applications Parties: MATTER 2011/119169
MATTER 2011/119152
Portia Gatti by her next friend Rebecca Gatti (Plaintiff)
Calvary Health Care Riverina Ltd (First Defendant)
Dr Natalie Snyman (Second Defendant)
Rebecca Gatti (Plaintiff)
Calvary Health Care Riverina Ltd (First Defendant)
Dr Natalie Snyman (Second Defendant)Representation: Counsel:
K Balendra (Plaintiffs)
V Thomas (Defendants)
Solicitors:
Cater & Blumer (Plaintiffs)
HWL Ebsworth Lawyers (First Defendant)
Norton Rose Fulbright Australia (Second Defendant)
File Number(s): 2011/119169 & 2011/119152
Judgment
Proceedings have been commenced by a mother and child in respect of an injury sustained to a child within days of her birth. The child, Portia, was born on 1 May 2008 to Rebecca and Lio Gatti. The pregnancy had its difficulties, and Portia was born as a result of a caesarean section.
About four days after her birth she started to have some breathing difficulties, which became serious in the early hours of the morning of 6 May. She was ultimately transferred to the Royal Hospital for Women at Randwick in the afternoon of 6 May, where she remained until 19 May. It was suspected that the cause of the breathing difficulties was sepsis with septic shock.
The claim made by Portia is against the hospital and against the paediatrician who dealt with the problems which arose after the birth. It is alleged that they did not detect at an appropriate time and respond appropriately to the difficulties that she was having. Her mother, Rebecca, has brought a claim for nervous shock arising out of those events.
The proceedings were commenced in this Court on 12 April 2011 and were amended on 23 July 2012 to join the paediatrician as the Second Defendant. The Plaintiffs now apply by motion in each of the proceedings pursuant to section 146 of the Civil Procedure Act 2005 to transfer these proceedings to the District Court. Section 146 relevantly provides:
146 Transfer of proceedings to lower court
(1) If the Supreme Court is satisfied, in relation to proceedings before it:
(a) that the proceedings could properly have been commenced in the District Court or the Local Court, and
(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,
the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires.
...
(4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or workplace injury damages claim:
(i) that the amount to be awarded to the Plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the Plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.
The basis upon which the applications are made is that the medical evidence tends to suggest that the proceedings could have been commenced in the District Court because the damages that Portia will recover will be within the jurisdiction of the District Court. There does not seem to be any doubt that the damages that Rebecca claims always were within the jurisdiction of the District Court but it was entirely appropriate that the proceedings should have been commenced in the same court and, whatever the outcome of these Motions, they should remain together. Similar issues of liability will be determined, and the evidence in one will largely be the evidence in the other.
The Motions are supported on the further basis that by reason of the mother's psychological and psychiatric condition, some of which was pre-existing, she has difficulty travelling, or at least travelling without her husband being present. That gives rise to practical problems concerning his employment. It is feared also that if the proceedings remain in this court and will necessarily be heard in Sydney, there will be difficulties making appropriate arrangements for the care of Portia over the period of the trial.
The Defendants submit that the application to transfer the proceedings is made prematurely because of the uncertainty of the medical evidence. I have been provided with a number of medical reports from the treating paediatrician, as well as from a further paediatrician, a physiotherapist and a psychologist. Before turning to the medical evidence it should be noted that in the Statement of Particulars filed with the Statement of Claim in Portia's matter, the injuries were said to include brain damage, neurological damage and hemiparesis, as well as injuries to specific parts of the body.
What seems clear from the medical evidence, which does not go beyond the middle of 2009, is that Portia has, or had at that time, what Dr Snyman described as "a mild right hemiplegia, mainly affecting the upper limb."
In addition, the psychologist assessed that Portia had developmental delays in language and motor skills. In one letter the psychologist wrote to Portia's parents, these were described as, "Significant delays in language and motor development, with low average to average development in other areas." She has been seen by a physiotherapist who, at least in relation to her motor skills, expresses fairly positive opinions about them.
All of these medical reports were available to the Plaintiffs at the time the proceedings were commenced. There is little evidence of matters since that time, but I note what appears in an affidavit of Rebecca Gatti sworn 8 August 2013. That affidavit makes reference to the physiotherapist to whom Portia has been referred, and also a speech pathologist. I am informed by Ms Balendra of counsel, who appears for the Plaintiff that the reason there is not much medical evidence since 2009 is that Portia has not been seen by doctors apart from being seen for matters in the ordinary course.
The parties agree that any hearing of the matter is likely to take beyond a week, and possibly seven or eight hearing days. The Supreme Court does not sit in Griffith. The District Court sits in Griffith on a few occasions a year to deal with civil matters. There is evidence from the solicitor for the First Defendant of discussions he had with the District Court Registrar in Griffith who informed him that there were two one-week circuits each year for civil hearings, one in March and another in September. The civil week is at the end of the three-week sittings where crime is dealt with in the first two weeks. The Registrar said it was not possible to get a special fixture for a civil trial in Griffith during the sittings, but it was possible to apply for a special fixture outside the regular sittings there. Such applications had to be made to the Chief Judge and were only granted in exceptional circumstances.
The Plaintiffs have engaged a liability expert, Associate Professor Tibballs who resides in Melbourne. The First Defendant has engaged a medico-legal specialist in Sydney and the Second Defendant has not yet engaged any additional specialists. Rebecca has seen a psychiatrist, Dr Robertson, who now apparently carries on his practice at Blayney, but it seems likely that other specialists will be engaged by the Defendants in respect of Rebecca's claim. From the point of view of expert evidence there is and will be no advantage to having the matter heard in Griffith.
Ms Balendra has submitted that section 146 of the Act contains a presumption by virtue of what appears in subs (4), that in personal injury matters proceedings are to be transferred unless either of the matters contained in paragraph (b) are established. Any presumption that is contained in that subsection is, however, to be seen in the light of the whole section because subs (4) provides that the proceedings are to be transferred "under this section". The power in the first instance to transfer the proceedings from this Court to the District Court is found in subs (1). Before the Court gets to the point of a discretion to do so, it must be satisfied that the proceedings could properly have been commenced in the District Court or the Local Court.
On the state of the evidence, I cannot be satisfied at the present time that the proceedings could properly have been commenced in the District Court. Portia suffered injuries close to her birth time that may or may not be related to that birth and problems that Rebecca experienced in pregnancy. There is no doubt that on the latest medical reports there are some continuing problems, including developmental delays as well as motor impairment. However, as noted, all of these reports were available at the commencement of the proceedings. Doubtless, on the basis of that evidence the Plaintiffs felt, with some justification that the proceedings ought to have commenced in the Court.
It frequently happens in these sort of cases that proper assessment of the likely outcome cannot be made until children reach their teen years. That can have a big effect on what might be described as the big ticket items in these matters, economic loss and care.
It seems to me that there needs to be greater clarity which may not come about for some time to determine whether or not the proceedings could properly have been commenced in the District Court. As I have indicated I considered the application has been prematurely brought. The matter of the damages needs clarification.
Even, however, if it was at the point of considering sub-s (4), subparagraph (b)(ii) allows for there being other sufficient reason for hearing the proceedings in the Supreme Court. There is no current need for the proceedings to be transferred to the District Court. Indeed, there are some indications to the contrary. These matters are serious medical negligence matters which I consider require judge case management. I did not understand either of the parties to dispute that that was necessary. What appears clear is that judge case management would not be possible in Griffith. Even if the proceedings were transferred to the District Court and the case was judge managed that would take place in Sydney. There is, therefore, no advantage to the Plaintiffs' solicitors or to the Plaintiffs themselves that the proceedings at this stage be transferred.
Ultimately I consider that the matter is governed by sub-s (1) which provides a discretion. In the exercise of my discretion at the present time I would refuse to transfer the proceedings. That is not to say if the matter becomes clear at a later stage a further application might not be appropriate.
I have also had regard to the fact that both of the Defendants have provided undertakings in letters sent to the Plaintiffs' solicitors that if the proceedings remain in this Court and the damages do not exceed $500,000 they will not raise any issue in relation to costs as the Rules of the Court enable them to do.
For those reasons the applications are refused and amended Notices of Motion are dismissed.
I will direct that the Second Defendant is to file defences in both proceedings by 16 August 2013.
The Defendants have asked for costs of the Motion. They rely on two letters sent, one from each of the Defendants' solicitors yesterday afternoon to the Plaintiffs' solicitors inviting a withdrawal of the notice of motion and saying that if that was done they would agree not to ask for costs. These letters were apparently served at or about the same time as the letters to which I made reference earlier in my judgment where the Defendants undertook not to take any advantage of the rule where the damages are ultimately found to be less than $500,000.
The service of these letters was fairly late in the piece. I accept that the issue of damages falling below $500,000 was not apparently raised on the material of the Plaintiffs as a concern in the matter. I accept that the reasons the Plaintiff failed were similar to the reasons given in these letters. In the circumstances I think the appropriate order is that the costs should be the Defendant's costs in the cause.
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Decision last updated: 15 August 2013
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