Rayner v Minister for Health
[2002] WADC 251
•3 DECEMBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RAYNER -v- MINISTER FOR HEALTH [2002] WADC 251
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 25 NOVEMBER 2002
DELIVERED : 3 DECEMBER 2002
FILE NO/S: CIV 822 of 2002
BETWEEN: PAULINE RAYNER
Plaintiffs
AND
MINISTER FOR HEALTH
Defendant
Catchwords:
Practice and procedure - Western Australia - Taxation of costs - Turns on its own facts
Legislation:
Limitation Act 1935
Result:
Objection dismissed
Representation:
Counsel:
Plaintiffs: Mr J R Johnson
Defendant: Ms S M Brand
Solicitors:
Plaintiffs: Julian Johnson Lawyers
Defendant: McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
DEPUTY REGISTRAR HEWITT: Before me are the defendant's objections to taxation which were filed on 14 October 2002 relating to the plaintiffs' bill of costs for taxation which came before me on 7 October 2002.
The item the subject of objection is item 7 of the bill, getting up case for trial, which was claimed at and allowed at $12,500.
The basis of pars 1 to 5 of the objection is that an allowance should not have been made for the time taken by a solicitor to research the medical literature concerning the use of a substance called Prostoglandin E gel.
The relevance of that gel is that it was applied to the vagina of the plaintiff during labour and was alleged to have caused excessive uterine contractions which were a direct cause of brain injury to the child she was carrying and its death subsequent to birth.
It is suggested by the defendant that the solicitor should not concern themselves with such matters and should refer issues such as that researched in this case to experts for opinion.
It is further suggested by the defendant that the medical libraries maintained by the Sir Charles Gairdner Hospital would be able to research articles for a nominal fee of $25 per article.
Prior to this action commencing the parties held an informal conference at which the defendant made known its view that the administration of the gel was not known to be a cause of the complication which the plaintiff suffered and which ultimately led to the death of her child.
It is obvious that a lawyer investigating a medical issue is not an expert such that his testimony could be received in Court in support of his client's case. I am however of the view that it is perfectly proper and appropriate for a solicitor involved in a case such as this, where the state of the literature is likely to be relevant to the issue of negligence, to undertake enquiry into the literature to determine what, if anything, exists to support his client's position. I fully accept that in undertaking those researches the solicitor does not constitute himself an expert in the sense that he is able to give evidence, but he does come to a better understanding of the issues concerned and, in my view, will be in a far better position to prepare a brief for the expert opinion upon which the case must rely, having researched the literature and discovered relevant publications.
There would of course be limits on what should properly be allowed in the nature of this kind of work but the claim is for seven to eight hours of work, the work yielded useful information which was helpful in the pursuit of the plaintiffs' case, and in my view it is proper to make an allowance for it. I am therefore not persuaded that the objection to that component of getting up, which comprises the efforts undertaken in researching on the Internet, should have been disallowed or reduced. Furthermore, I am not persuaded that the process of delegating the task to a librarian in a medical library is likely to be cost efficient since the solicitor knows precisely what he is looking for and will, in any event, have to wade through a significant amount of material provided by the librarian once it is produced to him.
The balance of the objection seems to be that the amount allowed is by and large too high. One basis of objection is no schedule justifying the amount was provided. There is no rule requiring a schedule to be provided and in general terms I discourage the use of schedules since they are generally prepared in such broad terms as to be virtually useless and the time required to prepare a more detailed schedule is out of all proportion to the use to which it can be put.
My enquiries of the solicitor representing the plaintiff at the taxation indicated that the plaintiffs were proofed, a freedom of information application was made of the defendant which yielded a very significant number of documents which were inspected. The solicitors prepared a detailed brief to an obstetrician for his opinion and perused that opinion when it was obtained. There was further client contact concerning the ongoing case and consideration of the totality of the case including the opinion obtained. Leave was obtained under s 47A of the Limitation Act 1935 and from my observations the preparation of the case had proceeded to the point that it was, in most respects, ready to proceed to trial. A further complication at the relevant time was that the trial needed to be expedited because the husband who was a plaintiff in the action was dying of cancer.
All in all I am unable to see that the amount which was allowed for getting up was of an amount which indicates an error has been made. Accordingly I dismiss the objections and fix the plaintiffs' costs on the objection in the sum of $150 which shall be added to the taxed costs and I shall sign the plaintiffs' bill in the amount of $18,005.70 on the date of issue of these reasons. The defendant shall have 14 days after the date of delivery of the reasons within which to appeal against my decision.
0
0
1