Bishop-Kinlyside v Hunter New England Area Health Service

Supreme Court of NSW|2023-10-18|Before: Cavanagh J

REVISED EX TEMPORE JUDGMENT

Pursuant to an amended statement of claim, filed on 11 August 2023, the plaintiffs seek damages from the first and second defendants, arising out of the additional costs involved in the care of their child, Jaxon Bishop-Kinlyside.
The plaintiffs are the parents of Jaxon. Jaxon is now seven years old. He suffers from significant disabilities, including autism, intellectual disability and visual and hearing impediments. He has a condition, inherited from the first plaintiff, that involves gene mutations. His siblings have also inherited that condition and have learning difficulties, although not as severe as Jaxon. He is non-verbal and has no expressive language.
At least having regard to the expert medical evidence presented today, he needs significant assistance and care, over and above that which a child would normally receive from his parents. According to the report of Dr Sandra Johnson, dated 26 September 2022, his medical condition is permanent, and he is likely to require care and assistance into adulthood.
The matter comes before the Court by way of a motion filed by the plaintiffs on 11 August 2023 seeking orders pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The plaintiffs seek orders that the questions of liability and part of damages be determined prior to any final assessment of damages.
Mr Anderson appears for the plaintiffs, Mr Sergi appears for the first defendant and Mr Algie appears for the second defendant.
The defendants oppose the orders sought in the motion. I was provided with substantial material and helpful written and oral submissions by the parties.

The nature of the claim

Jaxon is not claiming damages himself. Rather, the plaintiffs are claiming damages against the defendants, who are said to have been negligent. The plaintiffs seek damages payable for the care and requirements that Jaxon will need over and above that which might ordinarily be provided to a child. It is not suggested by the defendants that, as a matter of law, damages could not be recovered: Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38.
The plaintiffs accept that the amount recoverable is subject to the limitation contained in s 71 of the Civil Liability Act 2002 (NSW). The Court cannot award damages for economic loss for the costs incurred associated with rearing or maintaining a child, except in circumstances where the parents seek any additional costs associated with rearing or maintaining a child that arise by reason of a disability suffered by the child.
Again, it is not suggested by the defendants that the limitations arising under s 71 of the Civil Liability Act would preclude the plaintiffs from recovering any sum, albeit there is a question as to how much they can recover.

The separate question

The plaintiffs seek an order for a separate question on the basis that Jaxon's full needs and the likely additional costs which will be incurred by them in looking after him cannot be assessed at present and will not be capable of assessment for a number of years.
A party seeking an order for a separate question must identify the question with some precision. The power to order a separate question is not a power to order a separation of issues.
After some discussion during oral submissions, it emerged that the plaintiffs are really seeking an order for a determination of a separate question after the conclusion of the main hearing.
The plaintiffs wish this matter to proceed in a manner which would: 1. involve a hearing determining breach, causation, the amount of damages payable to the plaintiffs in respect of the additional costs which have been and will be incurred by the plaintiffs until Jaxon turns 12 and the damages payable to each of the plaintiffs in respect of their claims for psychological injury; and 2. involve, at some time later, a further hearing to determine the damages which would be payable in respect of the additional costs which will likely be incurred by the plaintiffs to care for Jaxon after he turns 12, that is for the rest of his life.
On the plaintiffs' case, the first hearing will involve a number of issues, leaving only one question to be determined. That question would be: "what damages are payable to the plaintiffs by the defendants (assuming they are liable) in respect of additional costs, which will likely be incurred by reason of Jaxon's disability, after he turns 12, for the rest of his life?"

The allegations against the defendants

The plaintiffs' claim that Jaxon's disabilities are caused by two genetic mutations, which were inherited from the first plaintiff. The first plaintiff has a family history of disability caused by genetic mutation. Indeed, it seems that, as early as the 1980s, there was some attempt to become informed about that mutation and how it affected the family.
In 2007, the first plaintiff sought advice as to whether she was a carrier of the mutation, in order to decide whether she would conceive children. Having received advice from, she says, the second defendant, the first defendant arranged for a blood sample to be collected from her, which was then sent to the second defendant for analysis. The second defendant responded stating that the testing did not reveal the presence of the mutation, by way of a report dated 31 December 2009.
The first plaintiff has had five children. Sadly, the first child died. The other three suffer from some form of disability. Jaxon is the youngest child.
Unfortunately, the report, which was prepared on behalf of the second defendant, dated 31 December 2009, was based on a sample received on 7 December 1988, and not the sample which had been taken in 2008 and sent to the second defendant for testing. It is alleged by the plaintiffs that the second defendant lost that 2008 sample.
The first plaintiff was tested again some years later and the testing came back positive for the mutations. The plaintiffs' case is thus that both the first and second defendants were negligent, albeit in different respects.
Mr Sergi, on behalf of the first defendant, says that the case against his client really relates to the clinical practices in place at the time and will involve an extensive and detailed analysis of factual matters about how the sample was dealt with at that time.
Mr Algie, on behalf of the second defendant, does not dispute the essential proposition put forward by the plaintiffs, being that the 2008 sample was lost but he raises other issues, such as the scope of the duty of care owed by the second defendant.
The first plaintiff says that, but for the failures of the defendants in 2009 to report accurately on the presence of the gene mutations, she would not have conceived Jaxon.
It is not necessary to say anything further about the nature of the plaintiffs' claim, except that it is not suggested by the defendants, on this application, that the plaintiff's claims are bound to fail, that they have no arguable case or that there is some legal principle which would prevent them from pursuing such a case.

Principles to be applied

The principles which must be applied have been summarised in many cases (see, for example, Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 ("Tepko"); Combis v Lee [2020] NSWSC 960 at [27]).
It is important to bear in mind that, ordinarily, all issues should be determined at the one time. However, as is evident in r 28.2 of the UCPR, the Court has a discretion to order a separate question in certain circumstances.
The parties disagree whether it is necessary for the plaintiff to establish that there are exceptional circumstances which would justify a separate question. As Mr Anderson submits, that expression might have been been used in earlier cases but , at least in some recent decisions (see decision of Hoeben J (as his Honour was then) in Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 and Brereton J in Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697) a doubt has been raised as to whether it is necessary for the party seeking the order to demonstrate exceptional circumstances.
The governing principle is that the discretion must be exercised in accordance with the dictates of justice and the overriding purpose as set out in ss 56 and 58 of the Civil Procedure Act 2005 (NSW). The use of "exceptional" may be merely a convenient way of stating that it would not be the usual course.
Having said that, the ordering of a separate question must be approached with caution (see Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 and Tepko). The experience of the Court is generally that separating issues by way of a separate question can lead to additional costs being incurred and lead to some overlap in the evidence that might be adduced in the separate hearings. It is not always the case that the order for a separate question results in a saving in terms of time and cost. Further, the dictates of justice require consideration of justice to all parties, not just one party.
Generally, a separate question may not be appropriate: 1. when there is likely to be some overlap in the evidence, which could lead to witnesses being called twice; 2. when there are likely to be credit issues that is, when there may be disputed questions of fact which need to be determined. Initial findings of credit might impact upon what happens in the later hearing; 3. when the Court cannot be satisfied that the separation of the question will result in significant savings in time and cost; and 4. if there will still be a need for a further hearing irrespective of the determination of the separate question.

Determination

The real issue is whether it would be appropriate to leave for determination at some later time the assessment of damages payable to the plaintiffs for the additional costs incurred after Jaxon turns 12. The plaintiffs say that they would like to proceed with the main hearing but, unless the issues are separated, any hearing would be significantly delayed because that assessment cannot take place at this time.
In their written submissions, the plaintiffs identify that they would not be in a position to seek a final hearing for at least another two years. This is based on the report of Dr Louise Parry, a clinical neuropsychologist, dated 23 April 2023. In the meantime, they will have spent significant time and money caring for Jaxon and fulfilling his needs.
Dural oral submissions, Mr Anderson indicated that the time until a final hearing will be requested may be longer than two years.
In many personal injury matters involving minors, it is not possible to undertake an assessment of damages payable to the child, until such time as the child reaches at least his or her teenage years. That may be because there is evidence that the child's condition will change in his or her older years. In some cases, that provides a basis for a separate question. The evidence might go stale or it might be many years, perhaps ten, before any proper assessment can be made. It may be appropriate to order a separate determination of liability in those types of cases.
This is not such a case. The Court is not assessing damages which are payable to an injured child. The plaintiffs are seeking damages for the costs which they will incur on a long-term basis.
The substance of the plaintiffs' submissions is that any assessment of Jaxon's needs, going forward, cannot be made for a number of years, and as such, the question of long term needs and the costs should be separated.
The defendants dispute that it is necessary to wait a number of years for such a determination. In particular, they point to some expert evidence, for example, from Dr Parry to the effect that Jaxon's intellectual disability is a lifespan condition. Dr Parry suggests that there will be a widening gap which will emerge in Jaxon's functioning and participation, relative to typically developing peers, over time. She says a reassessment in around two to three years would provide further information in this regard. Reference is also made to the opinion of Dr Johnson that Jaxon's medical condition is permanent and he is likely to require care and assistance into adulthood.
The defendants also say that this is an inappropriate case for a separate later question as both plaintiffs are seeking damages for their own psychiatric injuries. They point to the fact that Dr Sharon Reutens, the plaintiffs' expert psychiatrist, suggests that the second plaintiff's prognosis is dependent upon Jaxon's future care needs and the availability of support; that is, the assessment of the second plaintiff's symptomatology, and the damages payable may be dependent on Jaxon's long-term prognosis. If Jaxon has adequate support, the second plaintiff's own psychiatric condition will be at less risk of deterioration.
The defendants also say that this is a case in which there will be a significant overlap of evidence and witnesses.
At least on my analysis, that must be so. Unless there is an admission of liability, it will be necessary for the two plaintiffs to give evidence both on liability and damages questions. At the first hearing, they will be required to give evidence about what happened in 2008 and perhaps what would have happened if given different advice, if that evidence is permitted. They will be required to give extensive evidence as to Jaxon's needs for the past. At a later hearing, they will be required to give evidence again as to his needs.
I am not sure whether there will be any credit issues. The first defendant says that there will be evidence of fact as to the clinical practices undertaken by the first defendant. I am uncertain whether that will necessarily, then, involve some challenge to the plaintiffs' evidence.
There will thus be some overlapping of witnesses. I would also expect there to be overlapping of expert witnesses, as there will need to be significant expert evidence on the damages issue at the first hearing and that will also be necessary at the second trial.
The defendants also submit that, having regard to the separate question sought, there would be no possibility of the first trial resolving all issues, unless the plaintiffs fail entirely. As such, the plaintiffs cannot demonstrate any likely savings in time or cost through the ordering of a separate question.
Mr Anderson submits that the first hearing will be a relatively simple hearing and may only take four days. The defendants submit that it is likely to take ten days.
Whilst I understand the basis of Mr Anderson's submission, the issues in these proceedings are complex. There are questions relating to duty, breach, causation and loss. There will be significant evidence on the difference between the costs incurred by the plaintiffs in caring for Jaxon and the costs they would have otherwise incurred. There will be issues relating to the fact that Jaxon has received benefits under the national disability insurance scheme ("NDIS") scheme and will continue to receive benefits under the NDIS scheme. The first defendant says it will be calling evidence of fact and will be adducing evidence from a number of experts.
It is not possible to determine whether the case will take ten days, but at least in my experience in dealing with professional negligence matters, I would be most surprised if this matter could be finished in a week.
Each application of this type must be determined on its own facts. It is necessary for the Court to look at the dynamics of the case.
In this matter, proceedings are only at an early stage. The amended statement of claim was filed on 11 August 2023; defences have been filed, but the parties are a long way from finalising all of their evidence. If I order a separate question, both the plaintiffs and defendants will need to obtain substantial evidence on damages. They will then need to obtain substantial evidence on damages some years down the track. It cannot be said that the process sought by the plaintiffs would save any costs, other than perhaps some costs of considering some heads of damages, such as accommodation needs and needs going forward for Jaxon, as he goes into adulthood.
I also accept that the ordering of a separate question after the event must mean that all of the issues will not be finalised by the first hearing. Further, in a case of this complexity, that is, involving significant legal issues and involving what may be significant damages, there is the real risk of an appeal.
It is not suggested by the plaintiffs that there needs to be a split hearing, leaving one question for later determination because evidence will not be available in later years or experts who have been retained will not be available to give evidence. Nor is it suggested by the plaintiffs that it will be necessary to wait until Jaxon is a teenager to assess his damages going forward.
In the end, I am not satisfied that the matters raised by the plaintiffs justify the separation of issues, through the identification and hearing of a separate question on some damages issues after all other issues are determined.
This matter is in its early stages. Having regard to the preparation which will be involved, it may be unlikely that any hearing date will be allocated until the end of next year. It follows that it would be possible, even on the plaintiffs' case, to assess all damages issues within a short period thereafter. Taking what was said in the plaintiff's opening submissions at face value, (that it will be necessary to wait two years to assess damages going forward), the delay will not be significant.
For the reasons I have identified, I am not satisfied that the question of what damages should be payable in respect the period after Jaxon reaches the age of 12 should be separated and determined after the main hearing. That would result in considerable additional costs being incurred by the parties. The Court is quite accustomed to dealing with these types of issues, in the sense that the Court is regularly required to assess damages which are payable based on projected costs. I am not satisfied, on the evidence before me, that this case is any different.
In the circumstances, the plaintiffs' motion is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2023

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