Wilson and Pagett v Murrumbidgee Local Health District

[2023] NSWSC 1213

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wilson and Pagett v Murrumbidgee Local Health District [2023] NSWSC 1213

Hearing dates:

06 October 2023

Date of orders:

06 October 2023

Decision date:

06 October 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The plaintiff’s motion is dismissed.

(2) List the matter for hearing on all issues commencing on 4 November 2024 for a period of 10 days.

Catchwords:

CIVIL PROCEDURE – motion for issues relating to liability be determined separately from issues relating to quantum pursuant to r 28.2 Uniform Civil Practice Rules 2005 (NSW) – where plaintiff is 10 years old and has suffered catastrophic injury – framing of order for a separate question – where damages issues not finalised – order for separate question refused – where alternative course available

Legislation Cited:

Uniform Civil Practice Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

A Wilson (Plaintiff)
L Pagett (Plaintiff)
K Wilson (Plaintiff)
P Pagett (Plaintiff)
Murrumbidgee Local Health District (Defendant)

Representation:

Counsel:
Mr M Cranitch SC with Mr D Ronzani (Plaintiffs)
Mr J Downing SC (Defendant)

Solicitors:
Blumers (Plaintiffs)
Minter Ellison (Defendant)

File Number(s):

2022/68249; 2022/161469; 2022/161515; 2022/161532

Publication restriction:

None

REVISED EX TEMPORE JUDGMENT

1. Pursuant to a motion filed on 8 June 2023 each of the plaintiffs seeks an order under r 28.2 Uniform Civil Practice Rules 2005 (NSW) that “all issues as to liability be determined separately from, and in advance of, all issues as to quantum”. On the hearing of the motion, Mr Cranitch of Senior Counsel appeared with Mr Ronzani for the plaintiff. Mr Downing of Senior Counsel appeared for the defendant.

2. As set out in the Statement of Claim filed on 9 March 2022, the primary plaintiff, Ayla Wilson, seeks damages from the defendant on the basis that at the time of her birth she suffered substantial injuries as a result of the negligence of the defendant. The plaintiff is now ten. She suffers from a spastic quadriplegic form of cerebral palsy. Her condition is such that she suffers from intellectual disability, limited vision, and a range of other disabilities which would require her to be cared for and supervised permanently, continuously and for the rest of her life.

3. Indeed, the expert evidence in the case is to the effect that she will require somewhere between 24 and 30 hours of care per day for the rest of her life from a range of health professionals. It is only necessary to say that the conditions for which the primary plaintiff suffers are of the most severe and most extreme type. She is being cared for primarily by her mother and grandparents who, as always in these types of cases, are faced with the quite significant task of caring for her using their all of their energies to do so to the best of their abilities.

4. After commencement of the proceedings the defendant filed a defence denying breach of duty of care and causation. However, subsequent to the filing of this motion, the defendant filed an amended defence admitting breach of duty of care but asserting that the injuries or disabilities of which the plaintiff suffers were not caused by any breach of duty of care on the part of the defendant.

5. The plaintiff’s case is that the conditions from which she suffers resulted from poor care during the birthing process. There is ample and significant evidence to that effect, hence the defendant’s admission of breach of duty of care. However, there is at least some evidence that the plaintiff’s mother was suffering from gestational diabetes and that that condition is known to increase the likelihood of intrauterine foetal hypoxia, that is increase the risk that the brain injury suffered by the plaintiff happened prior to the birthing process.

6. The defendant is not relying on any of its own expert evidence on negligence or causation. This issue is raised by one of the plaintiff’s experts, Professor O’Connor. On the other hand, the plaintiff’s expert paediatric neurologist, Professor Harbord, seems to discount it.

7. The defendant says that it is entitled to put causation in issue and that remains to be determined by the Court in due course, along with the significant damages issues which will arise in these proceedings.

8. Despite the admission of breach, the plaintiff persists with the motion on the basis that the damages issues are not ready to be determined. Mr Cranitch outlines three issues of substance which he says means that the damages issues are not ready to be determined, being that:

1. the plaintiff requires further surgery and there is a substantial risk of complications in respect of that surgery, in particular the surgery for the scoliosis, which could lead to deterioration in the condition and the need for further surgery and substantial other needs;

2. the plaintiff has not yet commenced percutaneous endoscopic gastrostomy (PEG) feeding and the PEG feeding could have a substantial impact on life expectancy; and

3. generally, the medical complications which could arise are uncertain and the plaintiff will not be in a position to have damages properly assessed perhaps until she turns 15.

9. As such, I assume that the plaintiff’s tutor has instructed those representing the plaintiff that she would prefer to have all issues relating to liability, now limited to causation, determined and then, if successful, make applications for interim payments until such time as damages can be assessed. That could be the only course which the family is contemplating because, at the present time, the plaintiff is being cared for by her family, living in unsuitable accommodation, without really receiving the level of professional care which the experts say she requires (despite the family’s efforts).

10. The defendant’s position on the motion is that, contrary to the plaintiff’s assertions, this matter is ready for hearing on all issues. Mr Downing carefully took me through the evidence of both the plaintiff and the defendant, including reports of the expert paediatric neurologist, rehabilitation specialist and occupational therapist. The defendant says that there is no evidence that would support any assertion that the plaintiff’s condition is likely to deteriorate in the next few years, and further, that the level of future treatment or care which she may need has already been factored in by the experts.

The relevant principles

11. Rule 28.2 of the Uniform Civil Procedure Rules is in the following terms:

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

12. Essentially, the plaintiff seeks an order that there be a determination of a question separately from any other question or questions which arise on the trial.

13. The power to make an order for a separate question is discretionary. However, the rule itself does not impose any limitation on the circumstances in which a separate question may be ordered.

14. Any determination of an application for a separate question must have regard to the dictates of justice and the overriding purpose of a quick, just, and cheap resolution of the issues in the proceedings. It is important to observe that the dictates of justice require consideration of not just the plaintiff’s position, but also the defendant’s position. The Court must do justice between the parties.

15. It is also important to observe that a party seeking an order for a separate question is generally required to identify the question which he or she asks the Court to determine. In reality, on an application such as this, it may be that the separate question could be that the amount of damages recoverable by the plaintiffs be determined after all other issues in the proceedings, or the question could be that causation be determined in advance of all other issues in the proceedings. The question is not framed with reference to simply splitting liability and damages, because that does not identify a question.

16. In any event, as Mr Cranitch agrees, it would not matter to the plaintiff whether the question of causation was dealt with in advance of all other issues or the question of damages was dealt with after all other issues.

17. In an application for a separate question there are a number of matters that need to be considered, including:

1. whether the granting of a separate question will result in substantial, or even any delay, to the proceedings overall;

2. whether the granting of a separate question will substantially increase the costs to both parties or even one party in particular;

3. whether the granting of a separate question is likely to facilitate the resolution of the proceedings or result in a finalisation of the proceedings one way or another;

4. whether there is likely to be substantial overlap in the evidence such that the granting of a separate question will ultimately produce difficulties in the running of the trial, with witnesses being required to give evidence twice;

5. whether there are credibility issues which might arise which will necessarily require, again, some overlap in the hearings; and

6. finally, the usual rule is that all issues are determined at the same time. Granting a separate question should be viewed as exceptional rather than the norm.

Application to this matter

18. As I have said, the plaintiff suffers from substantial disabilities. Ordinarily, it is not difficult to understand why a plaintiff who is still under the age of 18 might not wish have damages assessed until he or she is older. In many cases, questions of loss of earning capacity and future care will remain unresolved and undeterminable until the child reaches an age where school reports might be assessed, and work capacity might be assessed.

19. However, in this case the plaintiff suffers from such substantial disabilities that there is no suggestion that she will ever work or even any suggestion that she does not require at least 24 hours to 30 hours per day care.

20. Both parties have already obtained expert evidence as to her condition, treatment requirements and care needs. The only remaining thing seems to be housing and that can be easily obtained, even in the short term. There may be an issue as to whether the plaintiff requires a new house to be built or modification to existing premises. They are the sort of reports where experts abound and evidence can be obtained in the short term.

21. There are no credibility issues and the question of causation appears to be limited to a fairly narrow compass. Indeed, in circumstances in which the defendant does not have any expert medical evidence, it will presumably be addressed through cross-examination of the plaintiff’s experts and tender of other material, rather than a lengthy hearing and even the need for conclaves. As such, on one view, the question of causation could easily be separated or, put another way, the question of damages could easily be deferred until some later time.

22. However, despite the plaintiff’s desire for that to happen I must make any decision in accordance with the dictates of justice to both parties and ensure that any decision achieves the quick, just, and cheap resolution of all issues.

23. Unlike many applications in catastrophic injury cases involving minors, the parties have already obtained substantial and almost complete evidence on all damages issues. Indeed, on my analysis of all of the evidence most of the experts tend to suggest that the plaintiff’s condition is relatively stable.

24. Significantly, I have not been taken to any evidence which would necessarily suggest that the plaintiff’s condition is likely to deteriorate in any meaningful way over the past few years. Mr Cranitch may be right in suggesting that operations for scoliosis can produce significant complications but I have not been taken to any evidence which would suggest that that is likely, or that the complications are such that there would be any radical change in the plaintiff’s need for care or that the complications would result in any need for substantial operative treatment in the future.    

25. The point about this case is that there seems to be no dispute that the plaintiff requires 24 to 30 hours per day care for the rest of her life, such that this is not a case where the defendant is saying, “[s]he needs ten hours per day and will improve,” and the plaintiff is saying 30 hours a day. There is substantial agreement between the experts on a number of issues.

26. The second issue raised by Mr Cranitch relates to the PEG feeding. Mr Cranitch takes me to journal articles attached to the opinions on life expectancy, suggesting that life expectancy cannot realistically be assessed until a plaintiff with cerebral palsy turns 15. He also submits that life expectancy cannot be assessed properly until the plaintiff has embarked on a period of PEG feeding. He says that that feeding, if successful, may result in an increase in the life expectancy, but on the other hand, if unsuccessful, a risk of choking through swallowing may arise.

27. In those circumstances, it is not clear how waiting to see the result of PEG feeding would necessarily assist the plaintiff in circumstances in which Dr Harbord, the paediatric neurologist relied upon by the plaintiff, already says that the plaintiff has a life expectancy until the age of 65. The journal which Mr Cranitch took me to suggests that if there is a good result from the PEG feeding at age 15, the life expectancy would be 27. It’s not clear to me how that particular article supports the plaintiff’s case.

28. The third point raised by Mr Cranitch is that there can always be complications arising from surgery and it is premature to list the matter for hearing until it is known what those complications might be. I accept the submission about the risks associated with surgery but those risks have to be viewed in the context of the general opinions offered by all the experts as to the need for care, future treatment, housing and everything being provided as part of the general assessment of damages.

29. As I have indicated, there are, in fact, four matters before the Court. One is the primary plaintiff, and the other three are her mother, her grandmother and her father. They are all claiming nervous shock. I raised with Mr Cranitch why those matters could not be listed for hearing. He said that there was a possibility that, if the surgeries go wrong, the psychological conditions may be exacerbated. Whether or not that may be so, the force of Mr Cranitch’s submissions is that none of these matters should be listed for hearing for a number of years.

30. It is always difficult, in a case such as this, to do other than that which the plaintiff wishes. I mean by that that the plaintiff’s tutor is plainly acting in the best interests of the plaintiff, no doubt on legal advice. However, as I said, any determination must be made in accordance with the dictates of justice and s 56 of the Uniform Civil Procedure Rules, having regard to the interests of both parties. Further, the Court has an overall supervisory or protective role in looking at these types of cases.

31. In the end, I am not satisfied that the reasons identified by the plaintiff justify splitting the issues at this time, particularly when there is another course available. Again, I have regard to the fact that there are four matters, not just one, and on the plaintiff’s case each of the four matters must wait a number of years to be determined.

32. In my view, having regard to the extensive evidence obtained by both the plaintiff and the defendant, the matter is nearly ready for a hearing. The occupational therapists, rehabilitation experts and neurologists have had regard to almost everything that could possibly happen in the future, in offering a prognosis for the future and identifying the plaintiff’s needs.

33. In the circumstances, I do not consider that I should make an order separating the issue of damages from whatever other remaining issues there are. In coming to that decision, I have regard to the fact that there is an alternative course. Indeed, when I raised this alternative course with the parties there was little dispute to that approach.

34. The alternative course is to make orders that the matter be listed for hearing at the end of 2024, and that should any of the complications which Mr Cranitch speaks of arise following any surgery, or should there be any further deterioration in the plaintiff’s condition, or should there be something that happens to the plaintiff which has not been expected or covered by the existing evidence, the plaintiff can relist the matter before me for further consideration of whether the separate question should be determined, that is whether damages should be deferred to some later date.

35. In that way, if that which the plaintiff asserts emerges, the plaintiff can come back and make another application but, if it does not, then the dictates of justice suggests that all issues should be determined at the same time.

36. I thus make the following orders:

1. The plaintiff’s motion is dismissed.

2. List the matter for hearing on all issues commencing on 4 November 2024 for a period of 10 days.

3. Grant leave to the plaintiff to file a further application before me seeking a separate question at any time prior to 3 months before the hearing date should there be further evidence on which the plaintiff seeks to rely.

4. List the matter for further case management before me on 9 August 2024.

5. Plaintiff to serve any additional evidence on which the plaintiff intends to rely on the issue of causation by 5 April 2024;

6. Defendant to serve any additional evidence on which the defendant intends to rely on the issue of causation by 12 May 2024;

7. Plaintiff to serve any additional evidence on which the plaintiff intends to rely on the issue of damages by 16 June 2024;

8. Defendant to serve any additional evidence on which the defendant intends to rely on the issue of damages by 16 August 2024;

9. Grant liberty to the parties to apply on 3 day’s notice;

10. Parties to participate in a mediation in all four matters at any time prior to 30 June 2024; and

11. Order for costs on the motion that costs be the defendant’s costs on the cause.

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Amendments

11 October 2023 - Amendment to catchwords and representation on cover sheet.

Decision last updated: 11 October 2023