Spasovic v Sydney Adventist Hospital - [2002] NSWSC 164

CITATION: Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164

CURRENT JURISDICTION: Common Law Division
Professional Negligence List

FILE NUMBER(S): SC 20408/97

HEARING DATE(S): 1 March 2002

JUDGMENT DATE: 15 March 2002

PARTIES :

Rajko Spasovic (First Plaintiff)
Kosovka Spasovic (Second Plaintiff)
Sydney Adventist Hospital (First Defendant)
Dr Roderick Seymour Brooks (Second Defendant)

JUDGMENT OF: Studdert J

COUNSEL : I.F. Butcher (Plaintiffs)
M. Haire (First Defendant)
F.C. Murphy (Second Defendant)

SOLICITORS: Terence Stern (Plaintiffs)
Ebsworth & Ebsworth (First Defendant)
Blake Dawson Waldron (Second Defendant)

CATCHWORDS: Practice and procedure - medical negligence claim - application for appointment of conference between experts - application opposed - applicable principles.

LEGISLATION CITED: Supreme Court Rules

CASES CITED: Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930
Booth v De Francesco [2002] NSWSC 154

DECISION: See para 34.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFFESIONAL NEGLIGENCE list

STUDDERT J

Friday 15 March 2002

20408/97 RAJKO SPASOVIC & ANOR v SYDNEY ADVENTIST HOSPITAL & ANOR
JUDGMENT

1 HIS HONOUR: This is an application for an order pursuant to Pt 36 r 13CA of the Supreme Court Rules for a conference of medical experts and for consequential orders. The application is made by the second defendant, and it is supported by the first defendant but opposed by the plaintiffs.

2 Ms Murphy, who appeared for the applicant/second defendant, moved on her comprehensive affidavit sworn on 14 February 2002 which identified and annexed the relevant medical reports, identified complex medical issues on causation in this cause and proposed a conference to be attended by a single expert for the plaintiffs, Dr Dorsch, and three experts for the defendants, Professor Morgan, Dr Terenty and Dr Besser. As the plaintiff had also served reports of Dr Vinen, Professor Lance, Professor Eadie and Professor Brew, Ms Murphy acknowledged it would not be inappropriate for those experts to attend as well.

3 It was submitted by Ms Murphy that agreement on some issues may significantly shorten any hearing, and could lead to resolution of the proceedings.

4 In voicing the plaintiffs’ opposition to the application, Mr Butcher submitted that the costs of the conference were not warranted. The plaintiffs would require to be present at any meeting not only Dr Dorsch but Dr Vinen, Professor Lance, Professor Eadie, Professor Brew, and Dr Rodriguez. Moreover, he submitted that any conference was unlikely to prove useful having regard to the views presently held by the above identified doctors who have addressed the medical issues in this case.

5 The objectives of joint conferences are defined in Practice Note 121 and it was emphasised in Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930 that the court is alert to the desirability of ordering conferences under Pt 36 r 13CA in appropriate circumstances. However, where, as here, there is opposition to the appointment of a conference, the competing submissions require close consideration. In Booth v De Francesco [2002] NSWSC 154 I said:

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.

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Details

Case: [2002] NSWSC 164
Decision Date: 15 March 2002

CaseChat Overview and Summary

In the matter of Spasovic v Sydney Adventist Hospital, the case was heard in the Supreme Court of New South Wales. The plaintiff, Spasovic, brought a medical negligence claim against the defendant hospital, alleging substandard treatment that led to significant personal injury. The dispute centred around the hospital's duty of care and whether their actions fell below the accepted standard, resulting in the plaintiff's injuries. The hospital opposed the plaintiff's application for the appointment of a conference between experts, a step often crucial in medical negligence cases to facilitate expert evidence exchange and potentially expedite the resolution of factual disputes.

The court was tasked with determining the principles governing the appointment of such a conference and whether the application should be granted. Key legal issues included the relevance and necessity of a conference between experts in this context, the procedural fairness to both parties, and whether such a conference would likely assist in resolving the case efficiently. The court also considered the potential impact on the overall timeline and costs of the litigation.

The court ruled that the principles for appointing a conference between experts in medical negligence cases are well-established. It noted that such conferences are not automatic and should only be granted when they are likely to be beneficial in resolving factual issues. Given the complexity of the case and the specific circumstances, the court found that the proposed conference would not serve a useful purpose at that stage of the proceedings. Consequently, the application was dismissed. The decision highlighted the importance of ensuring that the appointment of expert conferences aligns with the overarching goal of efficient and fair litigation management.

Orders