Judgment
1HIS HONOUR:
Nature of proceedings
By an Amended Notice of Motion, filed in Court on 12 December 2013, the seven defendants moved for the following orders:
"1. An order, pursuant to s 67 of the Civil Procedure Act, 2005 that, proceedings 2010/214031, 2012/34063, 2012/340047 and 2012/168698 be stayed until such time as a certificate complying with section 347 of the Legal Profession Act 2004 (NSW) is filed and served in each proceeding.
2. Alternatively, an order that, the solicitor for the plaintiff file and serve in each of the proceedings a certificate complying with section 347 of the Legal Profession Act 2004 (NSW) forthwith.
3. An order pursuant to UCPR 14.28 that, the pleading described as "Liability as a Consequence of Intentional Tort", and the claim for damages described as "Damages for Intentional Tort" contained in paragraphs 79A, 82A, 82B, 82C, 82D, 82E, 82F, 82G, 82H, 82I, 82J, 82K, 82L, 82M, 82N, 82O, 82P, 82Q, 82R, 82S, 82T, 82U, 82V, 82W, 82X, 82Y, 82Z, 82AA, 82BB, 83, 84, 107, 108 and 109 of the second amended statement of claim, be struck out.
4. Alternatively:
(a) an order, pursuant to UCPR 15.4 that, the plaintiff give further and better particulars of the facts on which the plaintiff relies to allege, in paragraphs 79A, 82A, 82C, 82J, 82P, 82W, 82AA and 83 of the second amended statement of claim, that:
(i) the actions of each of the defendants were done with intent to cause injury or death to Mrs Hayer, or with reckless indifference to the risk of injury or death;
(ii) the alleged acts and omissions of the first, second, third, fourth, fifth and sixth defendants were intended to cause Mrs Hayer injury or death, or were recklessly indifferent to causing injury or death, as alleged;
(iii) a member of staff of the seventh defendant acted with intentional disregard or reckless indifference to the safety and welfare of Mrs Hayer.
(b) an order, pursuant to UCPR 15.10 that, in relation to each defendant, the plaintiff file particulars of the species of intentional tort it is alleged was committed by that defendant;
(c) an order, pursuant to UCPR 15.10 that, in relation to each defendant, the plaintiff file a statement of the nature of the case on which it relies to allege that an intentional tort was committed by that defendant.
(d) an order pursuant to UCPR 15.10 and/or UCPR 15.7 that, in relation to each defendant, the plaintiff give further and better particulars of the facts and circumstances on which it relies to establish an entitlement to exemplary damages against that defendant.
(e) an order pursuant to UCPR 14.22 that the pleadings filed in proceedings 2010/214031, 2012/34063, 2012/340047 and 2012/168698 be verified."
2The proceedings referred to in the amended motion were brought by the three infant children of the late Kulbir Singh Hayer and by his estate in respect of the death of Rashpal Hayer (Mrs Hayer) their mother and the wife of the late Kulbir Singh Hayer. The paragraphs referred to in the motion are those in the second amended statement of claim (SASC). The proceedings on behalf of the children were brought by their tutor, Pavitar Sunner.
3The first six defendants were all medical practitioners at the Westmead Hospital. The seventh defendant was the entity responsible for the Westmead Hospital staff.
4The impugned paragraphs of the SASC were generally in the following form:
"79A Mrs Hayer's death was caused by the defendants' intentional acts, done with intent to cause injury or death, or with reckless indifference to the risk of injury or death.
82A Dr Kam's acts and omissions were intended to cause Mrs Hayer injury or death or were recklessly indifferent to causing injury or death, by reason of the matters pleaded in 82B.
82B On 1 July 2007 despite the matters referred to in paragraph 16A and 16B Dr Kam:
(a) Did not personally examine Mrs Hayer who was admitted under his care.
(b) Did not inform Mrs Hayer that she was at risk of brain injury or death from a sudden rise in inter-cranial pressure.
(c) Did not inform Mrs Hayer that she was at risk of rapid deterioration.
(d) Did not inform Mrs Hayer that she required the insertion of drains urgently.
(e) Did not make immediate arrangement for Mrs Hayer to have drains inserted urgently.
(f) Went off duty and left the hospital without making immediate arrangements for Mrs Hayer to have drains inserted urgently."
"83 A member or members of hospital staff in:
(a) Silencing Mrs Hayer's finger probe alarm; or
(b) In the alternative, by ignoring audio or visual alarms indicating that Mrs Hayer was not being monitored;
committed an act or acts of intentional disregard or reckless indifference to the safety and welfare of Mrs Hayer."
5Allegations in the same terms as paras 82A and 82B were made against each of the other five medical practitioners named in the SASC.
6The motion came on for hearing before me on 12 December 2013. At that time the plaintiffs applied for an adjournment on the basis that they were not ready to deal with the amended motion. The adjournment was granted on the basis that the plaintiffs pay, on an indemnity basis, the defendants' costs of 12 December 2013 thrown away by the matter not proceeding. The costs were payable regardless of the outcome of the proceedings. The plaintiffs were ordered to provide particulars of the intentional tort claims.
7In the course of submissions on 12 December 2013 I expressed the opinion that the allegations of intentional tort pleaded against the six medical practitioners verged on the scandalous and that before the next hearing date, consideration should be given by the plaintiffs' legal advisers to either amending or withdrawing those claims.
Factual Background
8On 1 July 2007 Mrs Hayer presented to the Accident and Emergency Department of the Westmead Hospital. She was complaining of a frontal headache since the previous Tuesday. She had presented at the hospital on the previous evening, but did not wait to be seen because of the waiting time. She said that the headache was intermittent and had changed in severity from dull to sharp. On presentation, she was alert and orientated.
9A CT brain scan showed hydrocephalus, secondary to a colloid cyst of the third ventricle. The cyst was about 15 mm in diameter. Mrs Hayer was admitted to hospital that afternoon. Her coma score remained 15/15 which is mentally bright and alert. The consensus of medical opinion was that such a condition carried a risk of a sudden increase in inter-cranial pressure. Her treating neurosurgeon directed that she be monitored closely with one hourly neurological observation.
10An MRI was carried out on 2 July which confirmed the diagnosis of a colloid cyst of the third ventricle with secondary hydrocephalus. Her treating neurosurgeon decided that she should be placed on the next available operating list for surgery. On the evening of 2 July, Mrs Hayer experienced a severe headache which subsequently improved.
11Over that night Mrs Hayer remained under hourly neurological observation and her coma score was 14-15/15 with no focal abnormality. At 5.59am on 3 July she was found by the nursing staff to have fixed, dilated pupils and then had a cardiac arrest. Despite treatment by the Cardiac Arrest Team and a return of a pulse and blood pressure, Mrs Hayer remained unconscious. She was taken to the operating theatre where bilateral external ventricular drains were inserted and she was transferred to the Intensive Care Unit. An urgent CT scan was undertaken which showed diffuse cerebral oedema with herniation.
12Despite ongoing medical management there was no recovery of any neurological function and she was declared brain dead on 7 July 2007.
13The post-mortem examination showed the direct cause of death as cerebellar tonsillar herniation with compression of the brain stem and ischaemic encephalopathy. The antecedent causes were stated to be raised intracranial pressure, acute hydrocephalus and a colloid cyst of the third ventricle.
14A colloid cyst is a benign developmental malformation that consists of an outer lining of cells surrounding a collection of fluid. They cause no harm in themselves but come to clinical attention by obstructing the flow of cerebrospinal fluid and causing obstructive hydrocephalus. Sudden death is a well recognised risk for patients with colloid cysts of the third ventricle.
15On the evening of 2 July and the early hours of the morning of 3 July, in addition to hourly neurological observation there were a number of alarms, both audible and visual, available to assist in monitoring the condition of Mrs Hayer. A cardiac monitor was in place from 1 July and until 10.07 hours on 2 July when it was removed in order for the MRI to be performed. It was not replaced on her return to the ward, apparently because the patient was thought to be stable by the nursing staff.
16Mrs Hayer had a finger probe which measured her pulse and oxygen saturation levels. The probe when dislodged caused a number of warning devices to operate. First it emitted a low tone which was audible in the room, and secondly the monitor at the CROW (Clinical Review and Observation Workstation) outside the room displayed a white flat line and finally, the monitor in the Nurses' Central Station also displayed the white flat line and emitted a low tone.
17That probe became detached several times over the course of the night of 2/3 July 2007 and was replaced each time when a nurse was alerted by the monitor in the Nurses' Central Station or CROW Station, or by the sound of the alarm, that Mrs Hayer's probe had been dislodged.
18The Coronial Inquest into the death of Mrs Hayer included in its consideration the condition of the alarm systems at the bedside, at the CROW Station and at the Nurses' Station. The Coroner's findings were handed down on 8 October 2009. The Coroner found that Mrs Hayer's probe had become dislodged at about 5.30am on the morning of 3 July and was not replaced until Mrs Hayer was found in cardiac arrest at 0600.
19At the Inquest, all of the nurses responsible for the care of Mrs Hayer gave oral evidence. Some of that evidence conflicted with statements they had previously provided. The Coroner's conclusion in relation to that evidence was:
"On the oral evidence therefore of these three, the systems were working both during the night and the following morning. However, at 3pm almost half a day later, Nurse Lear observed from the computer screens, the alarms to be turned off. Because of that time lapse, it remains unclear when that may have occurred or whether indeed it is relevant to Mrs Hayer. There was by that time another patient in Room 38. Whether the alarms were deliberately silenced at some stage is a possibility, not necessarily from any malice but because of their intrusion when probes became detached. There was some evidence from Nurse Lawless, which I fully accept, of a "culture" of silencing irritating alarms in that ward."
20The Coroner also noted that the doors to each room were kept closed because of ventilation problems and in those cases it was unlikely that an alarm would be heard from outside or next door. The Coroner thought it most likely that Mrs Hayer's alarm did sound that morning but that the nurses neither saw nor heard it.
21The Coroner reviewed three investigations into Mrs Hayer's death which had been carried out by the hospital. The Coroner characterised those investigations as "contradictory and confusing". The Coroner concluded that these investigations were all flawed to a significant extent. These investigations were the origin of information conveyed to Mrs Hayer's husband some six weeks after her death to the effect that the alarms had been switched to "inaudible" without there being adequate evidence to support that proposition.
22The SASC was filed by Beilby Poulden and Costello (BPC), the solicitors for the plaintiffs, on 19 June 2013. On 26 August 2013 the solicitors for the defendants (Curwoods) gave notice of their intention to move to strike out the intentional tort allegations if the same were not withdrawn. They drew attention to other deficiencies in the SASC, e.g. the absence of certification complying with s 347 Legal Practitioners Act 2004. On 3 September 2013 Curwoods filed Notices of Motion in each matter, seeking to strike out the impugned paragraphs of the SASC and in the alternative, requiring particulars of the intentional torts. On 13 November 2013 Curwoods wrote to BPC noting that they had not received a reply to their letter of 26 August 2013.
23The defendants' written submissions in support of the motions were received by BPC on 20 November 2013. On 11 December 2013 BPC advised Curwoods by facsimile that they would be applying for an adjournment when the motions came on for hearing. By facsimile of the same date, Curwoods advised that any such application would be opposed.
24As already noted, the adjournment application was successful but carried with it certain costs consequences. The hearing of the defendants' motions was adjourned to 19 February 2014.
25On 13 December 2013 BPC advised Curwoods that the intentional tort allegations against the six medical practitioner defendants would be withdrawn but that the plaintiffs proposed to maintain that allegation against the seventh defendant. In those circumstances, Curwoods were invited to withdraw the motions, consent to the filing of an amended statement of claim and agree that there be no further order as to costs beyond those already made. Curwoods responded by requesting a copy of the further amended statement of claim and requiring particulars of the intentional tort claim against the seventh defendant. They foreshadowed a claim for their costs of the motion if the intentional tort claims against the medical practitioners were withdrawn.
26On 17 January 2014 BPC provided particulars of the intentional tort claim against the seventh defendant and on 22 January they provided Curwoods with a document entitled "Revised Third Proposed Amended Statement of Claim" (RTPASC). As foreshadowed, the RTPASC deleted the intentional tort claims against the six medical practitioners.
27The particulars of the remaining intentional tort claim were in the following form:
"The allegation of fact that the plaintiff relies upon is that the alarm on Mrs Hayer's bedside monitor had been deliberately silenced. The action relied upon and alleged by the plaintiff is the deliberate silencing of the bedside alarm. The plaintiff provides the following further particulars that the action of deliberately silencing the bedside monitor (pulse oximeter) was done with intent to cause harm because the seventh defendant knew that:
(aa) Mrs Hayer was in a high dependency ward.
(bb) Mrs Hayer had a colloid cyst in the roof of the third ventricle.
(cc) The cyst was largely or completely obstructing the flow of cerebrospinal fluid (CSF).
(dd) Mrs Hayer had hydrocephalous as a result of that obstruction.
(ee) Mrs Hayer had dilation of the lateral ventricles.
(ff) Mrs Hayer was assessed as being at risk of a sudden rise in intracranial pressure.
(gg) Mrs Hayer was at risk of rapid deterioration as a result of raised intracranial pressure.
(hh) Mrs Hayer was at risk of brain injury or death as a result of rapid deterioration.
(ii) Mrs Hayer did not have an endo-ventricular drain in place.
(jj) Mrs Hayer did not have a cardiac monitor in place.
(kk) Mrs Hayer required a pulse oximeter to be attached at all times to monitor her oxygen saturation levels and pulse.
(ll) The pulse oximeter was essential to ensure that if Mrs Hayer's condition deteriorated, hospital staff would be immediately alerted.
(mm) If the pulse oximeter alarm were silenced, staff would not receive an alert of a change or deterioration in Mrs Hayer's condition.
(oo) If staff did not respond to a change or deterioration in Mrs Hayer's condition, she would be at increased risk of brain injury or death.
In addition, or in the alternative, the plaintiff relies upon the allegations that aural and visual alarms were deliberately ignored. The plaintiff provides the following further particulars of the allegation that the action of deliberately ignoring aural or visual alarms was done with intent to cause harm because the seventh defendant knew that: [Similar particulars as those set out above were then added].
(a)(iii) The plaintiff alleges that the act of deliberately silencing Mrs Hayer's bedside monitor, so that it would not annoy or interrupt staff in EC3, was an act of intentional disregard or reckless indifference to the safety and welfare of Mrs Hayer, given that the staff member of the seventh defendant knew of the matters set out in A4(a)(i)(aa) to (oo).
In addition or in the alternative, the act of deliberately ignoring aural and visual alarms so that they would not interrupt staff in EC3 was an act of intention disregard or reckless indifference to the safety and welfare of Mrs Hayer. The plaintiff alleges that the staff member of the seventh defendant knew of the matters set out in A 4(a) (i) (aa) to (mm). For clarity we are referring here to the second set of particulars listed in answer to Q4(a)(i)."
28By letter dated 5 February 2014 Curwoods advised BPC that on 19 February they would be seeking to strike out the intentional tort claim against the seventh defendant on the basis that there was no factual basis for the claim and that as a matter of law, even if a factual basis could be established for the allegation, it was bad in law.
Submissions and consideration
29When the matter came before the Court on 19 February, counsel for the defendants advised that the only matters to be dealt with were whether the intentional tort claim against the seventh defendant should be struck out and the question of costs. Included in the question of costs would be the issue of whether the tutor should be responsible for meeting the costs order made against the infant plaintiffs on 12 December 2013.
Strike-out application
30The seventh defendant accepted that in order to succeed in this application, it needed to demonstrate "to a high degree of certainty" that the pleaded claim would fail if allowed to proceed to trial (Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]). The majority (Gleeson CJ; Gummow, Hayne and Crennan JJ) said:
"46 The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde [2000] HCA 41; 201 CLR 552 Gaudron, McHugh, Gummow and Hayne JJ observed at [57]:
"It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." "
31The seventh defendant put its submission in two ways. The first was to the effect that there was no factual basis for the intentional tort claim against it. In doing so, the seventh defendant took the Court to the evidence before the Coroner at the inquest and her findings. The seventh defendant stressed the unreliability of the investigations carried out by the hospital on which the intentional tort allegation was based.
32I agree that by reference to the transcripts of evidence given before the Coroner, it does appear that some unwarranted assumptions were made by those persons conducting investigations on behalf of the hospital and that the more likely sequence of events is that the alarm in Mrs Hayer's room was not turned off so as to render it inaudible. That, however, does not provide a sufficient basis for striking out the intentional tort claim.
33I have only read the transcript of evidence before the Coroner, some statements of witnesses and the Coroner's conclusion. I have not seen the witnesses give evidence. What is apparent from the material which I have read is that there are some contradictions in the evidence given before the Coroner and statements made by two of the nurses who were on duty on the night of 2/3 July. In most cases, the inconsistencies are readily explainable on the basis set out by the Coroner in her findings. That having been said, there remains a factual issue to be determined and that would best be done by a trial judge who had all of the material before him or her and who would have the opportunity of seeing and hearing the witnesses.
34The second element of the seventh defendant's challenge is based on the provisions of s3B of the Civil Liability Act 2002 (CLA) which relevantly provides:
"3B (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person - the whole Act ..."
35It was common ground that the CLA applies to these proceedings. In fact it is the CLA which provides the justification for the intentional tort pleading. A claim in negligence is covered by the CLA and its limitations on the damages which can be recovered. If, however, it could be shown that part of the claim came within s3B(1) and was excluded from the Act, there would be no limit on the damages which could be recovered.
36The seventh defendant submitted that the legislation did not intend for s3B(1)(a) to extend to causes of action arising from omissions. It submitted that this was plain as a matter of construction. It submitted that correctly characterised the intentional tort claim made against it was in reality a claim based on an omission to do something.
37The seventh defendant noted that s3B(1)(a) did not operate to exclude the operation of the CLA with respect to a claim for damages against a person sued for negligently failing to take steps to prevent an intentional act done by another with intent to cause injury or death (State of New South Wales v Bujdoso [2007] NSWCA 44; 69 NSWLR 302). It did, however, accept that where a defendant (as here) is vicariously liable for an intentional act done by another with intent to cause injury or death, the act and intention of the wrongdoer are the act and intention of the vicariously liable defendant (Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; 71 NSWLR 354).
38The seventh defendant submitted that the excluded conduct to which s3B(1)(a) related required two tests to be satisfied, i.e., that the act of the defendant was intentional and that the act was done with intent to cause injury or death. The seventh defendant submitted that the requirement for the second test excluded any reliance upon concepts such as "recklessness" or the proposition that damage that is the natural and probable consequence of a tortious act, is presumed to have been intended by the tortfeasor (Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388). The seventh defendant submitted that if s3B(1)(a) was intended to include an implied intention, there would have been no need to include the second limb, i.e. "with intent to cause injury or death". It would have been sufficient to simply refer to "an intentional act".
39I find the reasoning of the seventh defendant on this issue attractive. Were the matter free of authority, that is the interpretation which I would give to s3B(1)(a). However, the matter is not free of authority and to the extent that there is authority, it would indicate that the position adopted by the plaintiffs is at least arguable.
40In Dean v Phung [2012] NSWCA 223 the Court of Appeal considered a case of battery in a medical context. At [30] Basten JA said:
"30 ... So far as the operation of s 3B is concerned, it would have been sufficient for the appellant's purposes to establish that the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary."
Accordingly, having found that the defendant probably did not believe at the time he carried out the treatment that it was reasonably necessary, given the injuries suffered by the plaintiff, the defendant's conduct fell within the terms of s3B(1)(a) and there was no limit on the assessment of the plaintiff's damages.
41It is also unclear whether a defendant who is reckless as to the consequences of an intentional act has the requisite intention to cause injury for the purposes of s3B(1)(a). A possible example is where a defendant, knowing that injury might result from an intentional act, nonetheless takes the risk of that injury occurring, not caring whether the injury occurs or not. This, of course, is another form of "implied intent" as distinct from "specific intent".
42Given the uncertain nature of the law in relation to s3B(1)(a), I am not prepared to strike out the intentional tort claim against the seventh defendant on the basis that allowing it to remain in the RTPASC would serve no useful purpose or otherwise be futile.
43It follows that I decline to strike out the plaintiffs' intentional tort claim against the seventh defendant.
Costs
44The defendants submitted that the costs order which I made against the plaintiffs on 12 December 2013 should, insofar as the infant plaintiffs are concerned, be made against the tutor, Pavitar Sunner.
45This question was considered by the Court of Appeal in Yakmor v Hamdoush (No 2) [2009] NSWCA 284. There Giles JA (Ipp JA and Tobias JA agreeing) reviewed the cases on the issue of whether in conventional litigation a tutor should be responsible for any costs ordered against the party which he or she was representing. Giles JA set out his conclusions as follows:
"24 In my opinion, and subject to consideration of r 42.3 of the Rules, these principles apply to the liability of a tutor appointed under the Rules to represent a person incapable of managing his or her affairs. They do not depend on particular rules governing the appointment of a next friend and the next friend's responsibilities, but ascribe to the office of next friend a responsibility in relation to costs for the benefit of the opposite party. As is apparent from NSW Insurance Ministerial Corporation v Abualfoul, an undertaking to be responsible for costs is not required - an undertaking had been given by the next friend in the District Court, but the rules requiring and giving effect to an undertaking were not in force and the general law principles were accepted. The responsibility was an incident of the office of next friend, and now is an incident of the office of tutor.
25 The cases generally do not distinguish between the tutor's liability to pay costs pursuant to an order made against the person under an incapacity, and the tutor's liability to pay costs pursuant to an order made against the tutor himself or herself. The liability, however, is clear, and (still subject to r 42.3) I see no reason why it should not expressly be stated in the manner sought by the respondent in order (2). This is ultimately an exercise of the discretion in s 98 of the Act, and in my opinion it should be exercised by making order (2)."
46It may be taken that r 42.3 of the Supreme Court Rules does not apply. Order (2) to which his Honour referred was in the following form:
"(2) The appellant's tutor pay to the respondent the costs the appellant is ordered to pay".
47It follows, therefore, that in accordance with the reasoning in Yakmar v Hamdoush (No 2), the costs order which I made on 12 December 2013 against the infant plaintiffs i.e., Gurlean Hayer, Dilpreet Hayer and Sahibjot Hayer should be altered so as to include the responsibility of the tutor. There should be no change made to the order against the estate of the late Kulbir Singh Hayer.
48The amended orders should read as follows:
(1) In matter No 2010/214031 - the Estate of the Late Kulbir Singh Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013, such costs to be paid on an indemnity basis regardless of the outcome of the proceedings.
(2) In matter No 2012/034063 - Gurlean Hayer is to pay the defendants' costs thrown away by the matter not being a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(3) Pavitar Sunner is to pay to the defendants the costs which the plaintiff, Gurlean Hayer is ordered to pay.
(4) In matter No 2012/034047 - Dilpreet Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(5) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Dilpreet Hayer is ordered to pay.
(6) In matter No 2012/168689 - Sahibjot Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings.
(7) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Sahibjot Hayer is ordered to pay.
49The remaining dispute as to costs related to the disposal of the Notices of Motion generally. The plaintiffs submitted that they should have the costs of 19 February 2014 since the seventh defendant had failed in its strike-out application. The plaintiffs submitted that the general costs rules should apply, i.e., costs should follow the event.
50The defendants submitted that in relation to the motions generally, they had succeeded. The SASC insofar as the intentional torts were concerned was defective in its claims against the six medical practitioner defendants. The defendants submitted that it was necessary for them to file strike-out motions in each matter because the plaintiffs had ignored requests that they be withdrawn. The defendants submitted that it was only after the matter came before the court on 12 December 2013 that the intentional tort claims against the six medical practitioners were withdrawn and particulars provided of the intentional tort claim brought against the seventh defendant. The defendants submitted that in such circumstances they should have the costs of issuing the motions, preparing the affidavits in support and written submissions.
51The defendants submitted that if they were to be awarded costs incidental to the motions, those costs should be on an indemnity basis. The submission was that there never was a factual basis for the intentional torts pleaded against the medical practitioners and consequently the allegations should never have been made in the SASC. I agree that no material has been placed before me which would indicate that there was a factual basis for those allegations, even if concepts of recklessness could be imported into s 3B(1)(a). I am not persuaded that this is a sufficient basis for an award of indemnity costs, although it certainly entitles the defendants to an award of costs. The SASC was also defective in relation to the allegations of intentional torts because of a failure to properly particularise those claims.
52There is merit in the submissions of both parties. Except for the question of costs, the arguments which were put to the court on 19 February related purely to the strike-out application in relation to which the seventh defendant was unsuccessful. I am also influenced by the contents of the letter from BPC of 13 December 2013 which advised that the intentional tort allegations against the medical practitioners would be withdrawn and made a reasonable attempt to bring the matter to an end without the incurring of further costs.
53In addition to the costs orders which I made on 12 December 2013, as amended in this judgment, I make the following orders as to costs:
(8) In relation to each Statement of Claim, the plaintiffs are to pay the costs of the defendants of and incidental to the Notices of Motion up to and including 17 January 2014 (being the day on which proper particulars were first provided).
(9) In respect of the costs of the infant plaintiffs, their tutor Pavitar Sunner is to pay the costs which they are ordered to pay.
(10) The seventh defendant is to pay the plaintiffs' costs of 19 February 2014.