HIS HONOUR: By notice of motion filed on 6 February 2017, the defendant, Dr Killen seeks an order that four factually related proceedings be heard together. The application is that the proceedings be heard at the same time and that the evidence in each case be treated as evidence in all of the others. The several defendants support that proposal. The plaintiffs do not.
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Background
There are four sets of proceedings, all of which were commenced in the District Court of New South Wales at Wagga Wagga on 13 November 2015. Ms Marzol is the plaintiff in three of them and her husband John Marzol is the plaintiff in the other. They are as follows:
1. Proceedings by John Marzol (2015/334931) against Dr Ettie Joubert (a gynaecologist and obstetrician), Dr Jacqui Stumpel (a radiologist) and Regional Imaging Riverina (the entity which undertook the ante-natal scans and imaging), alleging negligence and breach of contract in connection with the birth of Eve Marzol. In relation to Dr Joubert, the allegation is that he was not, but should have been, provided with information regarding testing for Down Syndrome and that if he had Ms Marzol would have had such testing, and would have elected to terminate her pregnancy upon diagnosis. In relation to Dr Stumpel and Regional Imaging Riverina the allegation is that there was a failure to diagnose Down Syndrome and a failure to "adequately interpret" the morphology scan. Mr Marzol alleges that the conduct of the defendants has caused him to suffer "anxiety", "depression" and "nervous shock".
2. Proceedings by Ms Marzol (2015/334945) against Dr Joubert, Dr Stumpel and Regional Imaging Riverina alleging negligence and breach of contract in connection with the birth of Eve Marzol. Ms Marzol alleges that the conduct of the defendants caused her to suffer "anxiety", "depression" and "nervous shock".
3. Proceedings by Ms Marzol (2015/334949) against Dr Joubert alleging that when she performed the caesarean section on 16 November 2012 she "failed to remove the entirety of the plaintiff's placenta thereby causing the plaintiff injury, loss and damage". Ms Marzol alleges that she suffered some physical injuries as well as "anxiety" and "depression".
4. Proceedings by Ms Marzol (2015/334990) against Dr Killen (an anaesthetist) alleging negligence and breach of contract in connection with the manner in which she "attempted to perform spinal anaesthetic at multiple sites on the plaintiff" and in which she "performed an epidural anaesthetic on the plaintiff" during the birth. Ms Marzol alleges that her conduct caused her physical injury to her "lumbar back", with referred neurological symptoms to her left leg and foot as well as "anxiety" and "depression".
The power to consolidate proceedings is contained in Uniform Civil Procedure Rules 2005 r 28.5:
"28.5 Consolidation etc of proceedings
If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any of them."
Dr Killen submits that the power within the rule is engaged, and that I should order the four sets of proceedings be heard at the same time, with any further procedural orders necessary to ensure the efficient pre-trial management and conduct of such a hearing. I agree.
First, the proceedings all arise out of, or are connected with, the birth of Eve Marzol with Down Syndrome at the Calvary Hospital in Wagga Wagga on 16 November 2012. In relation to the wrongful birth case, this is clearly so and the plaintiffs in those proceedings sought, and the Court made, an order that those proceedings be heard together. However, the claim against Dr Killen is that she was negligent in administering anaesthetic to Ms Marzol during the delivery and, in the second claim against Dr Joubert, that she failed to remove the entire placenta following the birth.
These background facts establish "that the rights to relief claimed in [the proceedings] are in respect of, or arise out of, the same transactions or series of transactions". It is also "desirable" that the four proceedings be heard together.
Secondly, there is considerable factual overlap in the claims and the damages sought in each case. This overlap, which reinforces why it is "desirable" within the rule, is most evident in three respects.
1. First, in relation to the nature and extent of any psychiatric/ psychological injuries Ms Marzol alleges she suffered and her entitlement to non-economic loss (and any treatment expenses) in each proceeding. Ms Marzol claims in the wrongful birth proceeding that she has suffered (amongst other problems) anxiety, depression, nervous shock and PTSD. In the proceedings against Dr Joubert in connection with the placenta removal, Ms Marzol also claims that she suffered anxiety and depression. Similarly, in the proceedings against Dr Killen she also claims that she suffered anxiety and depression.
2. Secondly, in relation to the claim for domestic assistance. Ms Marzol claims that she has, and had, an injury-related need for domestic assistance in the wrongful birth case, in the proceedings against Dr Joubert in connection with the placenta removal, as well as in the proceedings against Dr Killen. Further, in those proceedings Ms Marzol claims the costs of assistance with childcare, as well as making what appears to be the same claim in the wrongful birth claim but for 24 hours per day, 7 days per week.
3. Thirdly, in relation to economic loss. In the proceedings against Dr Killen, Ms Marzol claims economic loss that, in effect, amounts to a claim for total incapacity for work. However, in the wrongful birth claim, she has advanced a claim for economic loss, which is yet to be fully particularised, but includes an allegation (independently of any finding the Court might make on the injury the plaintiff has suffered in consequence of Eve's birth) that she has an "[i]nability to work due to the requirements of Eve's care". Further in the proceedings against Dr Joubert in connection with the placenta removal "the plaintiff makes a claim for economic loss both past and in the future".
In relation to each rule, the transfer of the current proceedings into this Court (and those involving the claim against Dr Joubert relating to the failure to remove all of the placenta) was ordered by Fagan J on 10 February 2017 in part because "of the substantial commonality of issues and evidence concerning psychiatric illness and disabilities of [the plaintiff] and concerning the causation of the psychiatric illnesses if they should be established".
It is highly desirable, but also "desirable" within UCPR r 28.5, and in the interests of the parties and also the public interest, in "having all matters in controversy arising out of related facts determined at the one time": Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [7]; South West Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376 at [8]-[9] and [11]. The desirability stems, at least in part, from the need to avoid conflicting results if the proceedings are heard separately by different judges, but also to fulfil the objectives in s 56(1) of the Civil Procedure Act 2005.
As Fagan J pointed out, in the context of determining why all actions should be tried in this Court, rather than two in this Court and two in the District Court, as the plaintiffs had urged:
"Nothing could be more detrimental to the administration of justice in these proceedings than to have the District Court first determine, on two separate occasions, in two separate actions, against two different specialists, the degree of anxiety and depression suffered by the plaintiff and the extent of its causation by either the placental remnant event or the epidural anaesthetic, and thereafter having the Supreme Court, on a later occasion, make a third determination of the extent of the psychiatric affliction and the degree of its causation as a result of having learned, at the birth of Eve, that this child had Down Syndrome.
The potential for conflicting judicial decision on this important issue and the inevitability of duplication are obvious …"
Thirdly, there are procedural and other reasons that all favour the hearing (and "case management") of the claims together including:
1. avoiding the need for witnesses/parties and experts (such as peer review experts) to be called on multiple occasions before different judicial officers. There appears to be a distinct possibility that Dr Joubert would need to give evidence in all four proceedings - that is, in the three sets of proceedings involving the claims against her, but also as a witness of fact in the proceedings against Dr Killen;
2. the desirability of all quantum experts dealing with all matters within their discipline. For example, in connection with domestic assistance, the occupational therapist in the claim against Dr Killen will need to "deal with" the other claims made by both Mr Marzol and Ms Marzol. The expert may need to review and comment on the expert evidence served in the other cases;
3. a reference to mediation would be more efficient if all parties are involved, with knowledge of the evidence and issues in related proceedings;
4. the likely reduction in court time and costs.
These matters not only emphasise that it is "desirable" within UCPR r 28.5 for the proceedings to be managed and heard together, but that it will serve to facilitate the just, quick and cheap resolution of the proceedings within the terms of s 56(1) and (2) of the Civil Procedure Act: South West Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376 at [11].
The plaintiffs submitted that consolidation of proceedings is rarely ordered, with the more usual approach being to order that the proceedings be heard together, with the evidence in one being treated as evidence in the others. That is the course I propose to adopt.
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Decision last updated: 04 May 2018