McDonnell v Northern Sydney Central Coast Area Healrh Service

Civil Liability Act 2002 LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037 Admiral I Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105 Bass v Permanent Trustee Company Limited [1999] HCA 9, (1999) 198 CLR 334 Dunstan v Simmie Co Pty Ltd [1978] VR 669 Ford v Greer [2008] NSWSC 1181 Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215 CASES CITED : Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 Perre v Apand Pty Limited [1999] HCA 36, (1999) 198 CLR 180 Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832 State of new South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511 Tepko Pty Limited v Water Board [2001] HCA 19, (2001) 206 CLR 1 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8

Jean Cheryl McDonnell (First Plaintiff) PARTIES : Terrence Craig McDonnell (Second Plaintiff) Northern Sydney Central Coast Area Health Service (First Defendant) Sachin Coudhary (Second Defendant)

J Anderson (Plaintiffs) COUNSEL : J Downing (First Defendant) N Coskinas (Solicitor for Second Defendant)

Catherine Henry Partners (Plaintiffs) SOLICITORS : General Insurance Law Department (First Defendant) Avant Law Pty Ltd (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20536/2008 - JEAN CHERYL McDONNELL & ANOR v NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE & ANOR

JUDGMENT (Separate determination of issues) 1 HER HONOUR: By notice of motion filed 11 November 2009, the plaintiffs seek an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 that the question of liability and causation be determined separately from the other issues in the trial. 2 The first plaintiff is Jean Cheryl McDonnell. The second plaintiff is Terrence Craig McDonnell. The first and second plaintiffs are husband and wife ("the plaintiffs"). The first defendant is Northern Sydney Central Coast Area Health Service. It opposes this application. The second defendant is Sachin Choudhary. He is a general medical practitioner. The second defendant neither consents nor opposes the application. The plaintiffs relied on the affidavit of Maree Booth dated 10 November 2009. The first defendant relied on the affidavit of Robyn Maree Simpson sworn 30 November 2009.

3 On 26 July 2007, the first plaintiff gave birth to Bethany McDonnell at Wyong hospital. Bethany was born with Down's syndrome. The plaintiffs plead that as a result of the defendants' negligence, the first plaintiff was not informed that her pregnancy with Bethany was high risk for Down's syndrome. 4 On 12 February 2007, the first plaintiff underwent a nuchal translucency ultrasound scan. The first plaintiff pleads that the ultrasound demonstrated that she was in fact high risk for Down's syndrome and that she should have been advised of this. The plaintiffs claim that as a result of the defendants' negligence, they were "deprived of the opportunity to discontinue the pregnancy" and that as a consequence "they have suffered and will continue to suffer psychological injury and economic loss". The first defendant has admitted breach of duty but the issue of causation remains in dispute. The second defendant has not admitted breach of duty of care. 5 The plaintiffs are the parents of six children. They have a 16 year old son who is a high functioning Aspergers, a 14 year old daughter who is a somewhat difficult teenager, a 12 year old son who is an Aspergers, a nine year old daughter who appears to be somewhat obsessive, a two and a half who is known to be hyperactive and has delayed language and Bethany who has Downs Syndrome. Currently neither parent is earning an income and family finances are strained. Both parents have been diagnosed with depression. Determination of separate question 6 Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) states: "28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 7 There are a number of authorities on this topic which include Tepko Pty Limited v Water Board [2001] HCA 19, (2001) 206 CLR 1; Perre v Apand Pty Limited [1999] HCA 36, (1999) 198 CLR 180 at [436]; State of New South Wales v Lepore [2003] HCA 4, (2003) 212 CLR 511 at [187]; Dunstan v Simmie Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037. In Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215, Einstein J at [7]-[8] helpfully provides a compendium of cases upon this topic, which I need not reproduce here. 8 In Tepko, Kirby and Callinan JJ cautioned against the severing of issues by the court. Their Honours stated (at [168] - [171]): "…we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question. The fourth of our comments is related to evidence compiled, committed to writing and filed in advance of the hearing. Parties frequently, either together or separately, compile "books of documents". Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognised or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified." [Footnotes omitted] 9 In Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832 (approved in Admiral I Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105 at [19] per Barrett J), Einstein J rejected an application for separation of liability and quantum. His Honour's reasons cited (at [7]) as "far and away the most significant factor" the fact that the evidence of a plaintiff was likely to be critical both as to liability and as to damages/quantum in a number of ways. Additionally, expert evidence which both parties anticipated putting on in relation to liability was also material to any assessment of loss or damage. His Honour stated (at [8]): "It is envisaged that the same experts would be used relating to those issues both as to liability and as to quantum. Certainly, the same or very similar expertise is required and there is obviously a substantial overlap in the … [material] … the experts will need to review for the purpose of addressing the liability issues on the one hand, and the quantification issues on the other. It is obviously illogical and inefficient for the experts to engage in that exercise on two different occasions." 10 Since these decisions were handed down the Local, District and Supreme Courts in New South Wales have been affected by the Civil Procedure Act 2005 (NSW). Sections 56 to 62 are relevant. 11 Sections 56, 57 and 60 of the Civil Procedure Act relevantly provide: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. …

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute." 12 In Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464, Brereton J suggested at [6]: "While much has been said against the resolution of separate questions in Courts of high authority, nonetheless, since the (NSW) Civil Procedure Act 2005, it is my view that the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously."

See also Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 and Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 per Hoeben J at [17] to [21]. 13 The plaintiffs seek the separate determination of the questions of liability and causation be determined prior to incurring the significant expense of quantifying the additional costs associated with Bethany's special needs. If the application is granted and the plaintiffs succeed on the trial of the separate issues, they will seek an order for an interim payment of damages pursuant to s 82 of the Civil Procedure Act. The quantum of damages is limited by s 71 of the Civil Liability Act 2002. 14 The first defendant submitted that the plaintiffs have made no attempt to seek consent as to a statement of agreed facts for the purposes of the separate determination and on the available evidence. The first defendant further submitted that it seems likely that the issue of causation, and possibly also breach as regards the second defendant, will turn on disputed facts and rely to some significant degree on credibility findings - see Bass v Permanent Trustee Company Limited [1999] HCA 9, (1999) 198 CLR 334 (at 357-358). The first defendant also submitted that there is no clear line of demarcation between liability/causation issues and damages. 15 The plaintiffs' case, so far as liability is concerned, may encounter a difficulty in relation to s 5D(3) of the Civil Liability Act. It may be that the determination of this issue adversely to the plaintiffs would put an end to the proceedings. Counsel for the plaintiffs submitted that if this be the case then that the plaintiffs could get on with their lives and not exacerbate their psychiatric condition by having to wait some years and incur additional costs for the trial. 16 Section 5D(3) of the Civil Liability Act reads: "5D(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest." 17 The first plaintiff has allegedly made two statements, adverse to her interest, a few days after Bethany was born. 18 On 30 July 2007 at 12.30 pm, (four days after Bethany was born) the social worker recorded: "… Pt spoke about shock at finding out babe has Down Syndrome. Pt stated her & husband have accepted same & positive re future. Pt stated that she was shock to find out that she was high risk preg for Down Syndrome & although pt states that this wouldn't change her decision re preg she is angry that she didn't have more time to prepare …" 19 On 31 July 2007, the nursing notes record: "Retrospect report for 30/7/07 1000. Discussion with patient and Dr De Silva. Patient aware of ultrasound report states it would not affect out look [? unintelligible]. However it would have given her time to prepare her 3 older children had she have known the exact [? unintelligible] " 20 However, there is a report by Dr Jungfer dated 18 March 2008, at [8.1]. It seeks to explain the first plaintiff's state of mind shortly after the birth of Bethany. It states: "… The pregnancy was unplanned and Mrs McDonnell states clearly that had she known the child were to have had a developmental disability that she would have chosen to terminate the pregnancy rather than carry the child to full term. This thought is communicated with substantial guilt and feelings of distress because clearly the child is alive and in her care." 21 I have considered whether this issue is a discrete one that should be determined separately, but it is my view that it would be difficult for a trial judge to do so. The judge would be better placed to evaluate the first plaintiff's credibility if he or she was not confined to the limited amount of evidence on this issue. 22 The first defendant referred to Ford v Greer [2008] NSWSC 1181, where I stated (at [37]-[38]): "[37] The separate determination as currently framed, in the notice of motion, is that "the quantification of any damages payable to the plaintiff by the defendant be determined separately from and after the determination of all the other questions in the proceedings". This separate determination would include the determination of causation. The Court would be required to determine whether certain injuries and disabilities were caused by the fall. This depends on medical opinion and the defendant will be obliged to obtain and serve medical reports for this separate determination. To embark on this enquiry defeats the purpose of leaving only quantum for determination, and leads me to conclude that there will not be substantial savings of time and expense, …"

[38] In my view there is no bright line that distinguishes between the separate determination and the rest of the matters in dispute. …" 23 Dr Hugh Allen, a respiratory and general paediatrician, opined on 3 October 2009 that Bethany will need a multidisciplinary service which would include regular paediatric, developmental paediatrics, specialist paediatric care including nursing, gastroenterological, cardiac, respiratory and sleep teams. She would also require regular ear, nose and throat, ophthalmological and dental review. Bethany will require significant physiotherapy, occupational and speech therapy to help her make developmental progress. According to Dr Allen, Bethany's progress has been and will continue to be very slow. At this stage her initial walking may not happen for at least three to five years and her health care plan with appropriate goals would need to be formulated. Her congenital heart disease is mild and should not require cardiac intervention and should not shorten her life unless she has pulmonary hypertension. Her vision and hearing have been regularly reviewed and this will continue. 24 Dr Allen is of the opinion that the following needs should be assessed in approximately three months time:

(a) Bethany's symptoms and signs of obstructive sleep apnoea need further investigation as they may be contributing to her failure to thrive.

(b) Bethany's microcephaly should be investigated. Although it could be just that her failure to thrive and the Down syndrome are the aetiological agents, there may be another explanation for this including cerebral malformations. 25 Dr Allen concluded that there is no doubt that Bethany is affected by being at the severe end of the developmental spectrum for children with Down syndrome and that she has severe developmental delay. Her education will be profoundly affected by her physical and developmental disabilities. All forms of education will be difficult. As a result she will require special education and most likely will not enter the workforce in any significant capacity at all. Dr Allen was of the view that Bethany would need supervision for her entire life. These will include housing, employment, education, finances and health and all other facets of her life. From this report, it seems most, but not all, of Bethany's disabilities are due to Down's syndrome. 26 There is no list of agreed facts. However, I accept that if liability and causation are determined separately, it may obviate the need for a trial on quantum or, alternatively, a decision in favour of the plaintiffs may lead to settlement of quantum.

27 It is my view that the plaintiffs and most of the doctors will have to give evidence at both liability/causation and quantum trials. While I am sympathetic to the plaintiffs' plight, it is my view that there is no bright line that distinguishes between the separate determination of liability and causation issues from the quantum issue. Nor am I satisfied that in the circumstances the separate determination will lead to substantial savings in time and expense. 28 The plaintiffs' notice of motion filed 11 November 2009 is dismissed. Costs are reserved.

(1) The plaintiffs' notice of motion filed 11 November 2009 is dismissed.

(2) Costs are reserved. ***********

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