Wederell v Ballarat Health Services
[2014] VSC 636
•16 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 05252
| KEVIN WEDERELL | Plaintiff |
| v | |
| BALLARAT HEALTH SERVICES | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 December 2014 |
DATE OF RULING: | 16 December 20141 |
CASE MAY BE CITED AS: | Wederell v Ballarat Health Services |
MEDIUM NEUTRAL CITATION: | [2014] VSC 636 |
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PROCEDURE – Circuit trials – Proper venue – Change of venue - Considerations – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 5.08, 47.01.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Shorthall | Slater and Gordon |
| For the Defendant | Mr M Regos | DLA Piper Australia |
HIS HONOUR:
Introduction
Mr Wederell commenced proceedings in the Melbourne Registry of the Supreme Court against Ballarat Health Services (Ballarat Health).
Mr Wederell’s claim relates to alleged negligent treatment at the Ballarat Base Hospital (the Hospital). Mr Wederell resides in Wendouree, a suburb of Ballarat, and the Hospital, operated by the defendant, is located in central Ballarat (corner of Sturt and Drummond Streets).
On its face, this is a ‘Ballarat case’. The Court, on its own motion, convened a directions hearing to determine why the proceeding should be in the list of Melbourne proceedings. Ballarat Health submitted that it was appropriate to transfer the case.
It was argued on behalf of Mr Wederell that the proceeding should remain in the Melbourne list, as significant costs would be incurred in relation to calling at least one expert (who is based in Melbourne) to give evidence in Ballarat.
It was also argued that the inconvenience likely to be caused to experts giving evidence in Ballarat may have broader implications: it may deter expert witnesses in medical negligence cases from agreeing to give evidence in circuit matters in the future.
These submissions are not convincing and, for reasons set out below, I am satisfied that the trial should be heard in Ballarat.
Background facts
Mr Wederell is 67 years of age. According to his statement of claim, he was admitted to the Hospital on 28 September 2011 to undergo total knee replacement surgery.
Mr Wederell alleges that as a result of the negligence of the Hospital’s staff, he suffered right knee joint haemarthrosis, epidural haematoma, spinal cord compression and cauda equine syndrome.
The writ was issued on 30 September 2014 for a trial by judge and jury in Melbourne, by Mr Wederell’s lawyers (who practice in Ringwood). Mr Wederell seeks damages for pain and suffering and medical and like expenses. No claim is made for loss of earning capacity.
As at the date of this ruling, no defence has been filed with the Court.
The principles
The relevant principles to be applied in an application of this nature are set out in McCready v Bendigo Health.[1]
[1][2014] VSC 565 (McCready).
As I observed in McCready, although the default position in matters such as this is that the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (Rules) permit a plaintiff to choose the venue at which a proceeding is to be heard,[2] this will be displaced if other considerations satisfy a court that the chosen venue is inappropriate.[3]
[2]The Rules, r 5.08(1) and r 47.01.
[3]McCready [2014] VSC 565,[10].
Ultimately, the primary factor in determining the appropriate venue for trial will be that of the balance of convenience,[4] with a plaintiff’s choice of venue subsidiary to the outcome of that analysis.[5]
[4]McCready [2014] VSC 565, [11].
[5]McCready [2014] VSC 565,[14].
Application of principles to this case
The balance of convenience and the interests of justice clearly point to this trial being heard in Ballarat and not in Melbourne:
(a) Inconvenience to the litigants and lay witnesses
Mr Wederell requires the use of a wheelchair and resides in an assisted living facility. Although I am informed that Mr Wederell has friends with whom he can stay in Melbourne for the duration of the trial, it would patently be more convenient for Mr Wederell if the trial were held in Ballarat.
Of the defendant’s proposed witnesses, three out of the four live in Ballarat and work at the Hospital.
Clearly Ballarat, on this point, is the proper venue.
(b) Inconvenience to the expert witnesses and additional costs
Dr Daly, an expert anaesthetist engaged by Mr Wederell, in a letter to Mr Wederell lawyers, stated that requiring him to travel to give evidence in Ballarat would significantly inconvenience his practice and the cardiothoracic transplantation team at the Alfred Hospital (where he is based). He also suggests (in a somewhat convoluted way) that it would cause him to charge an additional estimated cost of $3000 per day.
Dr Daly goes on:
I am a very strong supporter of the expert code of conduct. But to be realistic I think that a move to rural locations would be contrary to the objects of the code. Active, relevant, independent, contemporary experts, who are not dependent on legal work for income will shy away from issues that come from rural locations. This can only lead to a decrease in the value of expert testimony.
I have considered Dr Daly’s comments. With respect, I find them difficult to understand. The additional travel time to Ballarat (by car on a freeway which can be accessed at Kings Way – about two to three kilometres from the Alfred) is an hour to one and a half hours each way. It is difficult to see how an additional three hours travelling time could result in the inconvenience and expense Dr Daly postulates.
I accept that a trip to a more far-flung outpost (such as Mildura or Warrnambool) may involve considerably more inconvenience and cost. However, Ballarat is no further away, at least in terms of travel time, than some of the outer suburbs of Melbourne at peak hour. I simply do not think that the inconvenience, or cost, is of such a magnitude to justify the case not being heard in its natural forum.
Similarly, I consider Dr Daly’s fears about the reluctance of experts to give evidence in rural courts to be overstated. From my experience, having worked as counsel in this area of law for a long time, the idea that medical practitioners would desist from providing advice on the basis that they would be required to spend slightly more time away from their rooms or practices if a case were heard in Ballarat rather than Melbourne is, I think, highly unlikely. Many doctors enjoy a day in the country or down by the beach. Many like to escape their rooms for a day. Some even look forward to the thrust and parry of a trial, wherever it is held.
If Dr Daly’s proposition were to be accepted, then in relation to the trial venue, the Court would be held hostage by the wishes of expert witnesses. For my part, I think that the observations of A’Beckett J in Leversha v Wrangham,[6] to which I referred in McCready, hold good for expert witnesses, just as they do for counsel.
[6](1889) 15 VLR 363; McCready [2014] VSC 565,[26]-[27].
If, contrary to my experience, there is a genuine inconvenience to an expert witness that prevents the witness from travelling to rural Victoria, then any such inconvenience can be accommodated by taking his or her evidence via video link. Indeed, in this case, it could be undertaken from the Alfred Hospital where Dr Daly practices. This, it seems to me, would, as a last resort, ameliorate the difficulties to which Dr Daly has averted.
I do not consider that Dr Daly’s opinion, which I accept as genuinely held, militates against a transfer to Ballarat.
(c) Community participation
As I indicated in McCready, I regard it as highly desirable that residents of Ballarat have the opportunity to watch and, possibly, participate in a trial involving the treatment of a local resident at their local hospital.[7] Justice should be able to be seen to be done in regional, as well as metropolitan, Victoria.
[7]McCready [2014] VSC 565,[28].
Conclusion
This case should be tried at the Ballarat Court. The potential inconvenience to one expert witness does not outweigh the balance of convenience of having the trial heard in Ballarat.
As I indicated to the parties in Court, I propose to make the following orders:
1.The proceeding be transferred to the Civil Circuit List to be heard in Ballarat.
2.Costs of this hearing be costs in the cause.
3.Liberty to apply, in due course, for a special fixture.
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