Younes v Parvin
[2017] NSWSC 1786
•11 December 2017
Supreme Court
New South Wales
Medium Neutral Citation: Younes v Parvin [2017] NSWSC 1786 Hearing dates: 11 December 2017 Date of orders: 11 December 2017 Decision date: 11 December 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) Order the plaintiff is to file and serve an amended statement of particulars by 22 December 2017;
(2) Order the plaintiff is to file and serve, pursuant to r 31.4 of the Uniform Civil Procedure Rules, written statements of all oral evidence upon which he proposes to rely by 22 December 2017;
(3) Order the defendant by 19 January 2018 to:
(a) serve, pursuant to Rule 31.4 of the UCPR, written statements of all oral evidence to be adduced from all witnesses of fact on all issues at the hearing; and
(b) all expert reports on all issues to be addressed at the hearing.
(4) Order the plaintiff to serve any liability and damages evidence in reply by 15 February 2018.
(5) Note that the parties have agreed to attend a mediation by 16 February 2018.
(6) Proceedings listed for a directions hearing before Garling J at 9.30am on 21 February 2018.
(7) Liberty to restore on three days' notice.
(8) Note that it is the intention of these orders that all evidence will be completed by the dates nominated in the orders.Catchwords: PROCEDURE – application for expedition – where carer is plaintiff’s wife – where carer is suffering significant psychiatric impacts – order for expedition made Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: George Younes bht Mirna Dib (Applicant)
Tamanna Parvin (Respondent)Representation: Counsel:
Solicitors:
Mr A Canceri (Applicant)
Mr M Windsor SC (Respondent)
Slater & Gordon (Applicant)
Norton Rose Fulbright (Respondent)
File Number(s): 2017/00141974 Publication restriction: Not Applicable
EX TEMPORE Judgment
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This is an application for expedition by the plaintiff.
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The plaintiff commenced proceedings by filing a Statement of Claim on 11 May 2017. He claims that, on 29 June 2014, as a consequence of a consultation with the defendant at the Pitt Street Medical Centre, he was not adequately diagnosed with respect to a cardiac condition. The consequence of that inadequate diagnosis was, he claims, that he had a significant cardiac arrest about two and a half hours after the conclusion of the consultation.
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The cardiac arrest was not immediately detected and, by the time the plaintiff was attended to and transferred to Westmead Hospital, it became apparent that he had been left with a global hypoxic-ischaemic injury, as a result of which he now requires 24-hour nursing care.
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The defendant puts liability in issue, both as to breach of duty and as to causation of injury, loss and damage. The details of that contest are not yet apparent because no expert liability reports have been served by the defendant.
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On 16 October 2014, the plaintiff was discharged from Westmead Hospital and transferred to a nursing home. The circumstances in which the plaintiff was then transferred to his own home and looked after by his wife, who is the tutor, are a little unclear. According to the Statement of Claim, it seems that the plaintiff's wife, his tutor, elected to move the plaintiff home "due to the inappropriate staff-to-patient ratio placing the plaintiff's life at risk". According to a history given to one of the experts, an episode of pneumonia may have intervened; it perhaps does not matter. Ms Dib, the tutor, was not professionally qualified as a nurse, but she received some training in the care that needed to be provided to her husband.
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In 2015, the plaintiff was admitted to hospital with pneumonia and has since had two further admissions to hospital in June 2016 and January 2017. It seems that in 2017 services commenced to be provided by the National Disability Insurance Scheme on the basis of one hour per day. Other than that, all care is provided by the tutor.
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The plaintiff, on the expert material before me, is completely dependent on his wife in all aspects of personal care. He remains bed-bound or chair-bound and he requires a hoist to be transferred. He does not speak and does not readily follow commands. He has a tracheostomy and a feeding tube in situ. Experts have recommended that, if cared for at home, he has the benefit of 24-hour nursing care being provided, either by a registered nurse or by an experienced endorsed enrolled nurse.
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In June 2017, the plaintiff’s tutor was assessed by Dr Gary Larder, an expert psychiatrist. He concluded that the caring role which Mrs Dib was undertaking was having significant psychiatric impacts upon her. He said that her capacity to care for the plaintiff was becoming increasingly questionable "from a medical ethical perspective". He said that she needed urgent respite and needed rest and sleep. He also thought that she would need some psychotropic medication for a period of at least six months. He recommended that she have some ongoing treatment.
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He thought the prognosis for Mrs Dib's psychiatric condition was poor and that she would need much emotional and psychological support to hand over the care of her husband to professionals. He had grave concerns in June that the tutor would collapse from the development of a stress-related illness or a severe deterioration in her psychiatric status and thought that there was an urgent need for a range of treatment being provided to her at home.
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I have nothing up-to-date since June 2017. I have no affidavit from the tutor, nor from anybody reporting on her current status, by reference to information and belief. It is surprising, if the position was as dire as Dr Larder suggests in June 2017, that I have no further material.
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On the other hand, the position of the plaintiff’s tutor is relatively plain. She is herself providing care 24 hours a day, seven days a week, except for one hour a day, for the plaintiff who is, essentially, bedbound, who is unable to speak or mobilise and requires complete assistance in all activities of daily living.
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I am asked to expedite the hearing of this case on the basis of the evidence that I have. At present, the plaintiff's evidence is not yet fully complete and the defendant is not yet to serve all liability and damages evidence. There have been a number of orders made, by way of case preparation and case management, which do not seem to have brought the parties to a position where they might be ready for a hearing.
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An application for expedition, in this case opposed by the defendant, who provides no evidence contrary to that of the plaintiff, is a matter that requires careful consideration. Any case which is expedited and is given a hearing date displaces the ability of other cases to receive a hearing date and may also involve displacing a case from a date which it already has.
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Not only do the interests of the plaintiff and his tutor have to be carefully attended to, but so do the interests of other litigants in the Court. Ultimately, the Court has to determine what the interests of justice in any particular case require.
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In my view, this case merits some expedition. It is not immediately urgent in the sense that it must be heard this week or next, but it certainly should be heard at the earliest available date. Orders should be made to ensure that it proceeds as promptly as possible and that there is no delay in parties putting on evidence.
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I will grant the order for expedition of the Motion. I will make some orders for the preparation of the matter and bring the matter back before the Court at an early date and in the meantime I will inquire as to the first available date when the Court can hear the matter and the parties will be informed of that in the next 48 hours.
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I make the following orders:
Order the plaintiff is to file and serve an amended statement of particulars by 22 December 2017;
Order the plaintiff is to file and serve, pursuant to r 31.4 of the Uniform Civil Procedure Rules, written statements of all oral evidence upon which he proposes to rely by 22 December 2017;
Order the defendant by 19 January 2018 to:
serve, pursuant to Rule 31.4 of the UCPR, written statements of all oral evidence to be adduced from all witnesses of fact on all issues at the hearing; and
all expert reports on all issues to be addressed at the hearing.
Order the plaintiff to serve any liability and damages evidence in reply by 15 February 2018.
Note that the parties have agreed to attend a mediation by 16 February 2018.
Proceedings listed for a directions hearing before Garling J at 9.30am on 21 February 2018.
Liberty to restore on three days' notice.
Note that it is the intention of these orders that all evidence will be completed by the dates nominated in the orders.
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Reports of refresher or supplementary material may be permitted after the specified dates subject to the right of either party to object to that course at the time any such report is served.
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Decision last updated: 18 December 2017
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