Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem

District Court of WA|2018-05-09

The application of both criteria is indicated because an injury which by its nature is catastrophic may not necessarily create an extra burden of work. For example, where a plaintiff, by reason of serious injury, is hospitalised for the rest of his or her life, the quantum of the claim may be uncontroversial.

The expression 'personal injuries' should, as a matter of consistency, bear the same meaning as contained in the definition of a 'personal injuries action' in DCR r 3, that is, as including 'any illness suffered by him or her and impairment of his or her physical or mental condition'.
In McGlinn Staude DCJ set out the following principles regarding the making of a catastrophic personal injuries declaration which I respectfully adopt:

(b) the question of an 'extra burden' in the second of the LCC Criteria is whether by virtue of the subject injuries more time is reasonably required to be spent in preparation of the case for trial than allowed by item 17;[1208]

(c) the court is required to evaluate as a matter or impression, and without usurping the role of the taxing officer, whether the work involved in preparation of the case for trial exceeds the limit of item 17;[1209]

(d) the extra burden must be due to the subject injury, meaning that the court is concerned with the effect of the injury itself on the work done on preparation for trial;[1210]

(e) the expression 'catastrophic injury' as used colloquially in personal injury litigation 'characterises injuries which have a profoundly disabling effect on the victim, generally by depriving the victim of independence such that a permanent need for attendant care and supervision is created';[1211]

(f) the words 'at issue in the proceedings' in the LCC Criteria should be taken to mean the subject of the proceedings;[1212]

(g) in considering whether an extra burden is imposed by virtue of certain injuries, it is appropriate and necessary to have regard to whether liability is in issue as preparation for trial where it is not will necessarily involve less work;[1213] and

(h) it is for the party entitled to costs to satisfy the court of the extra burden occasioned by virtue of the injury in order to justify the declaration.[1214]

His Honour identified five ways in which a catastrophic injury may create an extra burden of work by way of preparation of a case for trial:[1215]

First, if the effect of the injury is to render the plaintiff profoundly disabled, particularly in terms of cognitive function, but also physical function (for example, dysphasia, as in this case, or inability to ambulate), more time may need to be spent obtaining instructions than would be necessary otherwise.

Second, a profoundly disabled plaintiff, depending on the nature and effect of the injury in question, may require a next friend to conduct the action. As in this case, an administration order may be necessary. In that event, work has to be done to prove the cost of trustee and fund management fees in respect of any damages recovered.

Third, profoundly disabling injury may give rise to a greater number of heads of damage, in particular in relation to future needs, as well as the issue of life expectancy. More expert evidence is likely to be required in such a case.

Fourth, the nature of the injury may give rise to losses and needs of a complex nature, such that more time is spent by a legal practitioner on work requiring the skill of a practitioner. (Item 17 expressly states that the work may be done by a legal practitioner, clerk or paralegal, for each of whom there is a prescribed maximum hourly rate.)

Fifth, a catastrophic personal injury claim is likely to involve briefing independent counsel at an early stage.

At the time of the decision in McGlinn the catastrophic personal injuries declaration only related to item 17. The concept was extended to items 16(a) and 20(a) in the 2014 Determination. The principles identified by Staude DCJ in McGlinn apply equally to items 16(a) and 20(a), though their application would need to reflect the different work involved in these two heads.
Counsel for the plaintiff refers to the findings at trial:

(a) as regards Cooper's injuries;[1216]

(b) as regards Cooper's Developmental and Cognitive Impairments (using my defined term);[1217]

(c) that Cooper's need for care and assistance will increase from 27 hours per week to age 18 to 33 hours per week as an adult;[1218] and

(d) that Cooper will require the administration of his judgment as an adult.[1219]

This founds the submission that Cooper's injuries were 'catastrophic' for the purposes of the 2012 Determination and subsequent determinations.

However, notwithstanding Cooper's Developmental and Cognitive Impairments, as at the date of trial he had attended school (albeit with teacher support). The damages awarded are premised on him continuing to attend school, and provide for support for this to occur. In relation to Cooper's high school years, it is instructive to repeat Ms Burns' opinion:[1220]

After Cooper enters High School he would be expected to be much more independent with activities of daily living. Nursing care staff would focus on developing self-care routines with the support of the Occupational Therapist and Psychologist, supporting social and leisure activities whilst promoting fitness and supporting Cooper with any after school activities/therapies.

As to his adult years, I identified four areas in which Cooper is more likely than not to require assistance:[1221]

(a) to coordinate the provision of his medical therapeutic and rehabilitation services;

This assessment assumes that Cooper will be able to live independently with the assistance provided. I did not assess him to require 24 hour a day on-call assistance.[1222]
Whilst Cooper's injuries are serious, I do not consider them to be catastrophic. Whilst they have a disabling effect on him, the effect could not be described as 'profoundly' disabling. He will have a measure of independence as an adult, and the damages provided are for care and assistance to enable him to live as independently as practicable.
As to the second aspect, counsel for the plaintiff refers to the five ways in which an 'extra burden' could arise set out by Staude DCJ in McGlinn (quoted at [66]). Counsel submits that, whilst these factors are neither exhaustive nor necessary, they indicate the types of factors to be considered. I agree.
As to those factors, the first does not apply given Cooper's age. The second applies given the work done in relation to the court appointed trust. The third factor applies as significant time at trial was spent on the issue of Cooper's future needs. The fourth factor applies given the complexity of Cooper's treatment needs. The fifth factor also applies as counsel was briefed at an early stage.[1223]
More generally, as a matter of impression I am easily satisfied that it would reasonably have taken well in excess of 120 hours to have prepared this case for trial (item 17). I am likewise satisfied that it would reasonably have taken more than eight hours time by a senior practitioner to prepared the schedules of damages filed (item 16). I am further satisfied that it would reasonably have taken more than 3.5 days preparation by counsel (item 20(a)).
The issue in this case is that the extra burden did not, in my view, arise 'by virtue of' the nature of the plaintiff's injuries. The complexity in this case arose because of the disputes as to liability and causation, as opposed to the disputes related to the nature of Cooper's injuries. Consistent with what I have said about the nature of Cooper's injuries, the case is not one that I would describe as a 'catastrophic personal injury claim'. Rather, for the reasons that I am about to articulate, it is a case of unusual difficulty and complexity. The plaintiff is entitled to have the scale limit in items 16, 17 and 20(a) increased, but not because the case involved a 'catastrophic personal injury' to Cooper.

Should there be an uplift in the applicable costs determinations pursuant to LPA s 280?

The power to make special costs orders is contained in Legal Profession Act 2008 (WA) (LPA) s 280(2), as follows:

... if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in the determination;

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.

The specific order sought by the plaintiff in the Plaintiff's Minute is that there be an uplift in the scale items for:

(e) counsel fee for the second and each successive day of hearing (item 20(c)).

I take the term 'uplift' used by the plaintiff to be a compendious description of the orders in paragraphs LPA s 280(2)(a), (b) or (c) (par (d) being a power to make ancillary orders).
The relevant item for schedules of damages in the present case is not item 6(b) (which refers generally to particulars) but item 16(b) (which deals specifically with schedules of damages filed pursuant to DCR r 45C).
If an order is made removing the limits on costs fixed for certain items in the applicable determination, it will remain for the taxing officer to quantify the costs by reference to rates, hours and amounts which are, in all the circumstances of the litigation, reasonable.[1224] I have already referred to the applicable principles for a party and party taxation (above [25]). So, in the present case, if an order is made removing the scale limits, is not necessary for the plaintiff to specifically seek an order altering the rates at which work may be claimed. Specifically the issue of whether the plaintiff is entitled to claim the rates set out in any costs agreement is one for the taxing officer. It will also be an issue for the taxing officer as to whether the briefing of a second junior counsel by the plaintiff was reasonably necessary.[1225]
The court can either remove the scale limits generally[1226] or for specific items.[1227]
The principles for making an order pursuant to LPA s 280(2) are well established:[1228]

(a) the court must first form an opinion that the costs otherwise allowable would be inadequate and second form an opinion that such inadequacy arises because of the unusual difficulty, complexity or importance of the matter;

(b) the requirement of inadequacy will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination;

(c) because the determination would ordinarily be made in advance of taxation, it is a matter of impression rather than of detailed evaluation;

(d) in regard to unusual difficulty, complexity or importance, the court can have regard to whether the work done was appropriate to the significance of the issues that arose in the litigation, to the parties or the public or to the community generally;

(e) 'unusual' in LPA s 280(2) qualifies 'difficulty' only and not 'complexity' or 'importance';

(f) 'unusual' means unusual having regard to what one might describe as the usual run of civil cases in the court; and

(g) having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics.[1229]

It is convenient to form an opinion on whether the costs allowable for the individual items identified would be inadequate and then to consider whether such inadequacy arises because of the unusual difficulty, complexity or importance of the matter looking at the case as a whole.
As to the cost of preparing schedules of damages, the time limit in item 16(b) is eight hours of the time of a senior practitioner. In the Second Hafford affidavit, Ms Hafford deposes that preparation of the damages schedules in this matter took in excess of five hours, referring to the limit in item 6(b). The detail and complexity of the damages assessment and calculation is patently evident in the particulars of damages in their most full form, being that filed 22 February 2016 (Folio 42) Additional particulars of damages were filed after trial (2 November 2017, Folio 138), which again reflect detail and complexity, albeit with many heads agreed. In view of the detail and complexity of the damages calculations in the present case, it is fairly arguable that the item for particulars in the bill to be presented to the taxing officer will be taxed at well in excess of 8 hours of the time of a junior practitioner.
The scale limit for discovery (item 7) is 10 hours of the time of a senior practitioner. In this case discovery of the medical history of the plaintiff from birth necessitated ongoing discovery. In the Second Hafford affidavit, Ms Harford deposes the completion of discovery in this matter took in excess of 10 hours. At the commencement of the trial, the plaintiff tended as exhibits five lever arch files of documents, two of hospital records, two of experts reports and one of school records. This is ample evidence for me to conclude that it is fairly arguable that the item for discovery in the bill to be presented to the taxing officer will be taxed at more than 10 hours of the time of a senior practitioner.
As to preparation of the case for trial, the scale limit is 120 hours of the time of a senior practitioner. The relevant scale limit is that specified as at the date the bill is assessed.[1230] This includes work reasonably and necessarily undertaken prior to the commencement of the proceedings. As an indicator of the work done in the matter as a whole, in the Second Hafford affidavit, Ms Hafford deposes that a review of her firm's online document management system indicates more than 4,600 documents have been created in relation to this matter. This figure does not include handwritten telephone or file notes or other materials received from the defendant or third parties which were not saved onto their document management system. She also identifies a large number of individuals and organisations which the plaintiff's solicitors have needed to liaise with. She further deposes that their file in relation to the matter comprises some 65 lever arch files. She says that that significantly in excess of 120 hours were expended with respect to getting up in preparation of the case.
The extent of the preparation of the case is also reflected in the fact that it took 14 sitting days, and evidence was taken from 24 witnesses. Fourteen of the witnesses were expert witnesses. The issues were ultimately the subject of a judgment that ran for 274 pages, with over a thousand paragraphs. There is again ample evidence for me to conclude that it is fairly arguable that the item for the preparation of the case will be taxed at more than 120 hours of the time of a senior practitioner.
As to the counsel fee on brief, the scale limit in item 20(a) is for 3.5 days preparation and the first day of trial. The plaintiff submits that the detail required to reach conclusions as to complex heads of damages, which came to be the subject of the agreed quantum for those heads of damages, of itself warrants an uplift in the number of days of preparation. I accept this argument. The effect of the agreement as to quantum was to obviate the need for between 5 to 10 sitting days. However, in order to position the parties to reach an agreement, it was necessary for counsel for the plaintiff to have prepared to a level which meant that, if required, the plaintiff could prove the damages claimed.
The plaintiff in written submissions also drew the court's attention to the level of preparation required for the expert witnesses, both in examination-in-chief and in cross-examination. I agree with the observation in the plaintiff's submissions that this preparation included the need to have a detailed working knowledge of the matters referred to by the experts in their reports, the academic literature and the evidence at trial.
Item 20(a) also includes submissions. The plaintiff's opening submissions comprised 30 pages. Counsel for the plaintiff also had to read and consider the defendant's opening submissions, which comprised 14 pages. To this I add the observations as to the length and complexity of the trial at [88].
Again, there is ample evidence to conclude that it is fairly arguable that the counsel fee on brief would be taxed at a figure well in excess of the time specified in item 20(a).
The final item on which an uplift is sought is item 20(c), being the counsel fee for the second and each successive day of hearing. The counsel fee of $3,960 is based on an hourly rate of $396 for 10 hours.[1231] The plaintiff submits that not only were some sitting days longer than standard hours, but that where expert witnesses had already given evidence-in-chief, extensive review of that evidence in preparation for cross-examination was also required out of hours. The plaintiff submits that the extent of those additional hours remains a matter for assessment by a taxing officer, but submits that it is fairly arguable that the daily fee during trial could be exceeded and that the scale be lifted to allow for the exercise of that assessment. I agree.
I turn to the second aspect of the discretion in LPA s 280(2), whether the inadequacies which I have identified arose because of the unusual difficulty, complexity or importance of the matter. The unusual difficulty and complexity of the case is well evident in the matters that I have identified in concluding that it is fairly arguable that the amounts in the scale items identified are inadequate. Compared to the run of the mill cases in the District Court, the small number of medical negligence trials conducted by the court each year are among the most complex undertaken by the court. This is one of those cases. It was both unusually difficult and complex.
The plaintiff is entitled to the orders it seeks pursuant to LPA s 280(2).

What costs orders is the plaintiff entitled to?

For the reasons which I have set out, the plaintiff is entitled to costs orders in the following terms:

(a) subject to order (d), the defendant pay the plaintiff's costs of the action, including reserved costs:

(1) up to 5 April 2017 on a party and party basis, to be taxed if not agreed; and

(2) from 6 April 2017 as between a law practice and its client, to be taxed if not agreed;

(b) the limits on costs fixed in the applicable determination for the following items be removed:

(5) counsel fee for the second and each successive day of hearing (item 20(c)).

(c) there be liberty to the parties to apply to a registrar (who may be the taxing officer) or the trial judge for any orders or directions required for the purposes of enabling costs above those in the determination to be assessed;

(d) the costs of and incidental to the defendant's application to further amend the defence filed 19 March 2018 be reserved.

The order in par (c) is taken from LPA s 280(2)(d) and ensures that the taxation can proceed in an orderly manner and that all relevant issues can be efficiently determined. It is not appropriate to make an order in the general terms sought by the plaintiff, that the plaintiff have liberty generally to apply for any further special costs orders. The plaintiff has had ample opportunity to apply for any other special costs orders.
I will hear from counsel as to the precise terms of the order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Statement of claim [4]; defence [3].

[3] Plaintiff's amended statement of claim, par 29.

[4] Plaintiff's closing submissions, par 176.

[5] Plaintiff's closing submissions, pars 176 - 177.

[6] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664 (judgment of the court).

[8] Harris P, Nagy S, Vardaxis N (eds), Mosby's Dictionary of Medicine, Nursing & Health Professions (2013, 3rd ANZ Edition, Elsevier).

[9] Meaning pertaining to the period of labour and birth: Mosby's (922).

[18] ts 454 (Lyneham); ts 1017 (Parry).

[19] ts 506 - 507 (Lyneham); ts 1018 (Parry); ts 1505 (Thompson).

[20] ts 455 (Lyneham); ts 1017 (Parry); ts 1505 (Thompson).

[46] Report dated 4 October 2011, exhibit 3, tab 3, page 5.

[59] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31] (Gleeson CJ, Gummow and Kirby JJ); Fazio v Fazio [2012] WASCA 72 [42] - [44] (Murphy JA, with whom Pullin and Newnes JJA agreed).

[60] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [35].

[68] Exhibit 1, tab 6, exhibit 17, exhibit 54.

[89] ts 123 (Hoglin); ts 209 - 210 (Ellis).

[96] Exhibit 3, tab 3, page 8 (Lyneham).

[99] ts 1484 (Thompson); ts 562 (Lyneham); ts 1199 (Amira).

[101] ts 1097 (Hagley); ts 1219 (Amira).

[107] ts 1193 - 1194 (Amira), ts 1057 (Hagley).

[114] Exhibit 1, tab 22; Exhibit 3, tab 8, page 3 (Tracy).

[120] ts 1484 (Thompson); 562 (Lyneham); ts 1199 (Amira).

[136] Above [204] - [206], also [48].

[137] Exhibit 1, tab 22, ts 1199, 1201 - 1202.

[141] ts 506, 509, 511, 582, 1514 - 1515.

[143] Exhibit 6, tab 1, page 2 (the partogram being part of the Bentley Hospital medical record pertaining to the delivery of Cooper).

[148] ts 455 - 456: See generally [49] - [52] above.

[150] Defendant's closing submissions, pars 109 - 113.

[159] Quoted in full context at [246] below.

[178] Exhibit 1, tab 22; ts 1201 - 1202.

[181] Exhibit 6, tab 4; ts 1527 - 1528.

[185] ts 456, 582 (Lyneham); 1486 (Thompson).

[187] See generally ts 506, 509, 511, 582, 1514 - 1515.

[196] ts 1266, also ts 1234, 1237, 1239.

[230] ts 490, terms explained at [38] above.

[234] ts 1232; as quoted above [260].

[277] Statement of claim, par 4; defence, par 3.

[278] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 487 (Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ); Cook v Cook [1986] HCA 73; (1986) 162 CLR 376, 382 (Mason, Wilson, Deane, Dawson JJ); Kerr v Minister for Health [2009] WASCA 32 [24] - [26] (Le Miere AJA, with whom Wheeler and Buss JJA agreed).

[279] Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gleeson CJ).

[280] Waverley Council v Ferreria [2005] NSWCA 418 [45] - [47] (Ipp J with whom Spigelman CJ and Tobias JA agreed).

[281] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).

[282] Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31], [40] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).

[284] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Waverley [45].

[285] Plaintiff's opening submissions, par 15.

[286] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587; [1957] 2 ALL ER 118, 122 (McNair J).

[287] This sub-section is discussed in some detail in Wright v Minister for Health [2016] WADC 93 [69] - [84] (Sweeney DCJ).

[288] South Metropolitan Health Service v Westcott [2016] WASCA 225.

[289] Westcott [104] - [106] (references omitted).

[290] Westcott v Minister for Health [2015] WADC 122 [40] (McCann DCJ).

[291] Rogers (489) (Mason CJ, Brennan, Dawson and McHugh JJ).

[292] Leheste v The Minister for Health [2012] WADC 92 [313] (Commissioner Gething).

[293] M_artin v Minister for Health_ [2016] WADC 15 [211] - [212] (Bowden DCJ).

[294] Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151; McKenna v Hunter & New England Local Health Districts (2013) Aust Torts Report 82-158; [2013] NSWCA 476.

[296] Wright v Minister for Health [2016] WADC 93.

[297] Wright [64] - [68] (emphasis in original).

[298] Panagoulias (by his next friend Fiona Averil Panagoulias) v East Metropolitan Health Service [No 4] [2017] WADC 118.

[299] Panagoulias [194] - [195].

[300] Brakoulias v Karunaharan (Ruling) [2012] VSC 272 [59], also [12].

[301] Halverson v Dobbler [2006] NSWSC 1307 [182] (McLellan CJ at CL), affirmed; Dobler [59 ] - [60] (Giles JA, with whom Ipp and Basten JJA agreed); Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702 [51] (Allsop P).

[302] MD v Sydney South West Area Health Service [2009] NSWDC 22 [ 7] (Goldring DCJ). See also Port Stephens Shire Council v Theodorakakis [2006] NSWCA 70 [15 ] (Bryson JA with whom Ipp JA and Giles JA agreed ) in relation to Civil Liability Act 2002 (NSW) s 42 (the equivalent to CLA s 5W).

[303] Interpretation Act 1984 (WA) s 32(1): 'The headings of the Parts, divisions and subdivisions into which a written law is divided form part of the written law'.

[304] Adeels [15], [23] - [40]; Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [65] - [77] (Buss JA); see also [3] - [20] (Pullin JA, with whom Newnes JA agreed).

[305] Mustac v Medical Board of Western Australia [2007] WASCA 128 [38] (Martin CJ, with whom Wheeler and Buss JJA agreed).

[306] Explanatory Memorandum, Civil Liability Amendment Act 2004 (WA).

[314] CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 235 CLR 103, 123 (Gummow, Kirby, Heydon, Crennan and Kiefel JJ).

[315] Amended statement of claim, par 29, particular (a).

[318] Amended statement of claim, par 29, particular (b).

[321] Amended statement of claim, par 29, particular (e).

[322] Plaintiff's closing submissions, par 12(a).

[325] ts 552 - 553 (Lyneham); ts 1526 (Thompson).

[327] Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90 [55] (McLure P), [69] (Murphy JA); [86] - [91] (Mitchell J).

[328] Amended statement of claim, par 29, particular (e).

[335] ts 1260 - 1262 (Amira); ts 483 (Lyneham); ts 1491 (Thompson).

[336] ts 1260 - 1262 (Amira); ts 564 (Lyneham); ts 1486 (Thompson).

[337] ts 1260 - 1262 (Amira); ts 482, ts 543 - 544 (Lyneham); ts 1491 (Thompson).

[339] See also: ts 477 (Lyneham); ts 1491 (Thompson).

[369] Kelly [55], [69], [86] - [91].

[370] Amended statement of claim, par 29, particular (e).

[371] Plaintiff's closing submissions, par 12(b).

[381] Exhibit 3, tab 3, page 20; exhibit 3, tab 5, page 2; ts 484, 550 - 551.

[383] Defendant's closing submissions, pars 74 - 79.

[394] See generally: Exhibit 3, tab 3, page 20; Exhibit 3, tab 5; pages 2-3; ts 485 - 487, 552 - 556, 605 - 606.

[395] See generally: Exhibit 3, tab 5; ts 485 - 487.

[402] ts 1506 - 1507; exhibit 6, tab 6, page 2.

[407] Defendant's closing submissions, par 48.

[412] See generally sections 4.5 and 5.10.

[426] ts 462 - 463 referred to in detail above [438].

[430] Kelly [55], [69], [86] - [91].

[431] Amended statement of claim, par 29, particular (g).

[432] Plaintiff's closing submissions, par 12(c).

[443] Exhibit 3, tab 3, pages 20 - 21; Exhibit 3, tab 5, page 3.

[471] Royal College Guidelines, exhibit 16, pt 5.4.

[476] Exhibit 16, section 5.5. See also section 5.4, both quoted above [501], [503].

[480] Exhibit 3, tab 3, pages 20 - 21; exhibit 3, tab 5, page 3.

[485] Kelly [55], [69], [86] - [91].

[486] Amended statement of claim, par 28.

[487] Amended statement of claim, par 31.

[490] See generally: ts 222 ff (Rao); 1399 - 1400 (Hunt).

[491] Exhibit 1, tab 35, 47, 52; ts 231 (Rao).

[493] ts 265 - 266 (Rao); ts 1400 (Hunt).

[505] Exhibit 1, tab 40, tab 41, tab 52.

[513] Defendant's closing submissions, par 266.

[514] Plaintiff's closing submissions, par 314.

[520] Exhibit 3, tab 8, page 4 (Tracy).

[521] Exhibit 5, tab 22, page 2; ts 1447.

[528] Exhibit 1, tab 22; Exhibit 3, tab 8, page 3 (Tracy).

[530] ts 223, 259, though Dr Rao refers to 'intermittent' pressure ventilation, not 'continuous', but nothing I could discern turns on this.

[531] Exhibit 6, tab 17, page 2; ts 1334 - 1335.

[539] ts 222 (Rao); 1368 (Ditchfeild).

[540] See generally ts 222, 228 (Rao).

[542] For example: exhibit 6, tab 27, page 3 (Do).

[551] See generally: ts 632;ts 748, ts 751 (Tracy); ts 1447 (Hunt); Mosby's (520) (diastole, diastolic), (1672) (systolic).

[557] Exhibit 3, tab 16, page 4; ts 634.

[558] Exhibit 6, tab 17, page 2, ts 1334.

[560] Exhibit 6, tab 22, page 3; ts 1447.

[565] ts 1368 (Ditchfield); exhibit 3, tab 16, page 4 (Keenan).

[568] Exhibit 1, tab 34; Mosby's 431, 781.

[569] See generally: ts 284 (Nguyen); ts 1371 - 1372 (Ditchfield); Mosby's 325, 329, Exhibit 26, appendices 20 and 21.

[570] Exhibit 1, tab 34 (Nguyen); Exhibit 6, tab 20, page 2 (Hunt); exhibit 3, tab 16 , page 5 (Keenan); ts 653 (Keenan); exhibit 6, tab 9, page 2 (Ditchfield).

[576] ts 639 (Keenan); ts 1395 - 1396, 1449 (Hunt); exhibit 6, tab 20, page 2 (Hunt).

[579] ts 1409, 1450 (Hunt); Exhibit 6, tab 15, page 1 (Ditchfield), ts 1331, 1350, 1352 (Ditchfield).

[580] Exhibit 6, tab 15, page 1; ts 1331.

[582] ts 286 (Nguyen); ts 1409, 1451 (Hunt); ts 1321, 1343, 1349, 1351, 1353 (Ditchfield).

[597] ts 288 (Nguyen); Mosby's 1291.

[598] Exhibit 1, tab 34; ts 277 - 278.

[599] Mosby's 127, 561, 781, 1080, 1643.

[607] Exhibit 6, tab 9, page 5 (Ditchfield); ts 287 (Nguyen); ts 599 (Lyneham); ts 764 (Tracy); ts 697 (Keenan).

[609] Exhibit 6, tab 9, page 5 (Ditchfield); ts 287 (Nguyen); ts 599 (Lyneham); ts 764 (Tracy); ts 697 (Keenan).

[611] Exhibit 3, tab 16, page 7; ts 648, 650.

[612] Exhibit 6, tab 9, page 5 (Ditchfield); ts 265 - 266 (Rao); ts 289, 291 (Nguyen); ts 599 - 600 (Lyneham); ts 700 - 701 (Keenan); ts 769 (Tracy); ts 1369 (Ditchfield).

[613] Exhibit 6, tab 9, page 5 (Ditchfield); ts 265 (Rao); ts 289, 291 (Nguyen); ts 701 (Keenan); ts 769 (Tracy); 1396, 1409 (Hunt).

[614] ts 772, 778 (Tracy); ts 1126, 1128 (Keenan); ts 1330, 1335, 1369, 1381 - 1382 (Ditchfield); ts 1402, 1405 (Hunt).

[620] ts 265 - 266 (Rao). See also ts 1401 (Hunt).

[625] Exhibit 6, tab 13, page 1; ts 1332, 1367.

[635] The annotated hard copy images are exhibit 29.

[637] ts 1371, also ts 1341, 1372, 1376.

[643] Exhibit 3, tab 8, page 5 (references omitted).

[646] Exhibit 6, tab 20, page 2; ts 1407 (Hunt).

[647] Exhibit 6, tab 9, page 5; exhibit 6, tab 11; ts 1326.

[648] Exhibit 6, tab 9, page 5; exhibit 6, tab 11.

[652] Exhibit 3, tab 16, pages 8, 9; ts 716.

[657] Sarnat H B, Sarnat, M S, 'Neonatal encephalopathy following fetal distress: A clinical and electrographic study', Arch Neurol 33: 696 - 705, 1976.

[670] See generally: ts 232 - 234, 242, 257.

[672] Exhibit 1, tab 35, 36, 37 and 38.

[673] Exhibit 6, tab 22, page 4; ts 1404.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (399 paragraphs)

Legislation Cited (7)

Cases Cited (149)

COOPER ELLIS (by his Next Friend CHRISTOPHER GRAHAM ELLIS) -v- EAST METROPOLITAN HEALTH SERVICE [2018] WADC 36 (9 May 2018)