McDonnell v Northern Sydney & Central Coast Area Health Service

LEGISLATION CITED : Civil Liability Act 2002 Civil Procedure Act 2005

Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253 House v The King (1936) 55 CLR 449 Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 CASES CITED : Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Tepko Pty Limited v Water Board [2001] HCA 19 (2001) 206 CLR 1 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 Warren v Coombes (1979) 142 CLR 531

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

COUNSEL : J Anderson (Plaintiffs) J Downing (Defendants)

T L Lawyers (Plaintiffs) SOLICITORS : General Insurance Law Department (First Defendant) Avant Law Pty Ltd (Second Defendant)

LOWER COURT JURISDICTION : Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S) : SC 20536/2008

LOWER COURT JUDICIAL OFFICER : Harrison AsJ

LOWER COURT DATE OF DECISION : 8 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION : McDonnell v Northern Sydney Central Coast Area Healrh Service [2009] NSWSC 1364

• 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/289718 MCDONNELL V NORTHERN SYDNEY & CENTRAL COAST AREA HEALTH SERVICE

JUDGMENT 1 The Plaintiffs appeal from a judgment of Harrison AsJ declining to order a separate determination of liability and causation from other issues in the proceedings. The application had been opposed by the First Defendant (the Area Health Service) with the Second Defendant (the First Plaintiff's General Practitioner) neither consenting nor opposing the application. 2 The Plaintiffs seek leave to bring the appeal out of time. Judgment was given on 8 December 2009. On 14 December 2009 the Plaintiffs' solicitor, on the advice of counsel, filed a Notice of Intention to Appeal in the Court of Appeal. She received subsequent advice from counsel on 2 February 2010 that the appeal was one under Pt 49.4 UCPR to a single judge. The Notice of Motion appealing pursuant to the Rule was filed on 4 February 2010. 3 The Defendants do not oppose the time being extended for the bringing of the appeal. The delay was short. It occurred over the vacation period. The reason for it has been adequately explained. I intend to make an order extending the time for bringing the appeal. Background 4 The facts are relevantly those set out by Harrison AsJ as follows: [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.

[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 (sic) 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." …

[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.

Harrison AsJ's judgment 5 The primary Judge noted the Plaintiffs' reasons for seeking the separate determination as follows: [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. 6 Her Honour's judgment made reference to a large number of authorities concerning the ordering of separate questions. In particular she set out the well known paragraphs from the joint judgment of Kirby and Callanan JJ in Tepko Pty Limited v Water Board [2001] HCA 19, (2001) 206 CLR 1 at [168]-[171]. 7 She noted that since that decision and a number of the other decisions mentioned, the Civil Procedure Act 2005 had come into force and that ss 56, 57 and 60 of that Act were particularly relevant to the consideration of a separate determination. 8 Her Honour then quoted from the judgment of Brereton J in Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 where he said 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.

Her Honour then made reference to subsequent decisions of Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 and Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309. 9 The essence of her Honour's decision is to be found in 2 places in her judgment as follows. First, having noted the 3 accounts of the First Plaintiff's intentions (detailed in paras [18]-[20] of her judgment - pages 2-3 above) her Honour said: [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. 10 She then finally said this: [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. 11 The present appeal is an appeal under Pt 49 Rule 4. Such an appeal is subject to the same principles as those governing an appeal from a judge to the Court of Appeal. The Associate Judge's findings of fact are to be followed on appeal unless the facts found or the inferences drawn by the Associate Judge are so flawed as to attract review by an appellate court under the principles set out in Warren v Coombes (1979) 142 CLR 531 at 553 - see in this regard Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409, affirmed on appeal sub nomine Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253.

The Plaintiffs' submissions 12 The Plaintiffs accept that the decision of the primary Judge was a discretionary decision and it is necessary for them to identify the sort of error that is described in House v The King (1936) 55 CLR 449. They say that her Honour made 2 such errors. First, it was said that she noted but failed to apply the principles enunciated since the passage of the Civil Procedure Act first identified by Brereton J in Integral Home Loans and then in the decisions which have followed it. Secondly, they say that her Honour proceeded on an erroneous basis in holding that determination of the causation issue depended upon the First Plaintiff's credibility and that her evidence in relation to quantum would place the trial judge in a better position to evaluate her credibility in relation to the causation issue.

(1) Failing to apply the proper principles 13 In relation to the first error the Plaintiffs accept that her Honour made reference to the post Civil Procedure Act decisions but say that she reverted to the approach in the earlier decisions by her reference in para [27] to the absence of a bright line that distinguished between the separate determination of liability and causation issues from the quantum issue. 14 Bearing in mind that the primary Judge set out the provisions of ss 56, 57 and 60 Civil Procedure Act, extracted the relevant portion of Brereton J's judgment in Integral Homes and referred to 2 subsequent decisions to similar effect, I do not consider there is any basis for the submission that her Honour did not apply the principles referred to in those post Civil Procedure Act decisions. It does not seem to me that her reference to there being no bright line distinguishing the separate determination of liability and causation issues from quantum issues is any indication of a reversion to pre Civil Procedure Act decisions or to the approach in those decisions. The warnings contained in Tepko still have considerable force and relevance even if the enactment of the Civil Procedure Act has resulted in a shift in approach, emphasis or practice in a way that is more disposed towards ordering separate determinations. The question remains one of fact in every case with various matters needing to be weighed up. 15 The Plaintiffs place some reliance on Hoeben J's decision in Johnson but 2 things stand out from that judgment. The first is, as his Honour noted at para [14], almost 11 years had passed since the events relating to liability occurred. The second matter, as his Honour noted at para [23], was that there was clear demarcation between the evidence to be called by the Plaintiff on the issue of liability and that relating to quantum. His Honour said that there was almost no overlap in the evidence to be called on those 2 issues. In my opinion, those matters emphasise only that it is a matter of fact in each case even if it is accepted that there is more of a predisposition towards a separate determination after the Civil Procedure Act came into force.

(2) The credibility issue 16 The Plaintiffs disputed that the question of the First Plaintiff's credibility would arise in relation to questions of quantum but did agree that in relation to the claim by the Plaintiffs for damages for nervous shock some evidence would be given by the Plaintiffs that might touch on credibility. The principal point made by the Plaintiffs in oral submissions was that there would be little or no commonality of medical evidence between the causation issue and matters that concerned quantum. 17 On what has been described as the causation issue - the issue of what the First Plaintiff would have done if she had known about the results of the nuchal fold translucency testing (the Defendants submitted that that was not the only causation issue) - the matter of s 5D(3) Civil Liability Act 2002 is important. That section provides: 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. 18 The Defendants no doubt wish to support and rely upon the contemporaneous records set out in paragraphs [18] and [19] of the primary Judge's judgment. On the face of it, it would seem that s 5D(3) would prevent the Plaintiffs giving evidence to the contrary but how far they would be permitted to go in endeavoring to explain away what is recorded in those entries is difficult to determine. Whether the Plaintiffs would be entitled to rely on what appears in Dr Jungfer's report of 18 March 2008 (set out in paragraph [20] of the primary Judge's judgment) is also unclear. Frequently limiting orders are made in relation to histories given by the plaintiffs to treating doctors so that the opinions of the doctors may be affected by the extent of the factual evidence given by the plaintiffs in Court. Whether it is possible in the face of s 5D(3) to tender a report with a particular history as in Dr Jungfer's report is unclear. 19 The issue here, really, is whether the trial judge would be better assisted in determining the causation issue if he or she heard all of the Plaintiffs' evidence, including evidence associated with quantum issues. 20 When it is borne in mind that the Plaintiffs suffered from pre-existing psychiatric problems, that their other children had at least developmental or behavioral problems, that at least one and possibly two of the other pregnancies were unplanned, and that both Plaintiffs make a claim for damages for their own psychiatric and psychological damage, it cannot be said that the primary Judge was wrong in taking the view that (a) there were credibility issues involved in the causation issue, (b) the determination of that credibility issue would be assisted by the trial judge hearing all of the Plaintiffs' evidence, and (c) there was no clear dividing line between the evidence on credibility that would be tested in relation to matters of quantum and in relation to matters of causation. 21 Because Mr McDonnell suffered from major depression for some time before Bethany's birth, because of the problems experienced by most of the other children prior to Bethany's birth and because of the claims made by both Plaintiffs for psychiatric disorders as a result of the birth (Ms McDonnell now suffers from major depression) it seems to me there will be a considerable crossover of evidence in relation to the quantum issues and the causation issue. Mr McDonnell's pre-existing problems will have to be dealt with in some detail on his claim for psychiatric injury. Clearly, his pre-existing psychiatric condition will be a relevant circumstance that the Court will need to consider in deciding the causation issue. 22 Dr Jungfer also reports that Ms McDonnell had some evidence of low-grade depression at the time of the pregnancy with Bethany "within the context of the pregnancy being unwanted". Dr Jungfer also refers to the fact that there was some evidence suggesting Ms McDonnell had previous post-natal depression. Those matters will also be relevant to the Court in deciding the causation issue. Moreover, the same psychiatrists who give evidence in relation to the quantum case will be relevant to the evidence of the pre-existing psychiatric conditions of both the Plaintiffs. 23 Similarly, the ongoing problems with the children, which may well be relevant not only to the psychiatric claims of the Plaintiffs but also to the Plaintiffs' needs for care and upbringing costs for Bethany, are likely to be relevant to the causation issue also as further circumstances to be taken into account. In that regard, her Honour's observation that there is no bright line distinguishing the causation issue from the quantum issue seems entirely apt. 24 It does not seem to me that the primary Judge has proceeded on any erroneous basis in relation to the matter of credibility and the causation issues. Mr Anderson of counsel, who appeared for the Plaintiffs, accepted that the trial Judge would be assisted by hearing all of the evidence when the Judge came to assess overall the evidence of the Plaintiffs and any credibility issues relevant to them. He said, however, that that had to be offset by other considerations, pushed to the fore by the Civil Procedure Act, such as costs savings associated with a separate trial. They are matters of weight which I will deal with in a moment. A decision one way or another in that weighing up exercise does not point to an erroneous basis for the primary Judge's decision. 25 She did not take into account any irrelevant matter, she did not fail to take into account or give insufficient weight to a relevant matter, there was no error of legal principle as I have already determined, no material error of fact is identified, nor is the result so unreasonable or unjust as to suggest that an error must have been made: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 26 The Plaintiffs make a number of points about the benefits of a separate hearing on the causation and liability issues. 27 The Plaintiffs submit that the quantum issues will not be able to go to trial for some time because Bethany is only 2½ years old. There was no evidence before the primary Judge directed to the need for any delay in assessment of the quantum and an attempt to lead fresh evidence to that effect was abandoned at the outset of the appeal. On the state of the evidence before the primary Judge all that could be concluded is that because she is a young child it may take some time for her disabilities to stabilize. That only means that the case is a similar one to any involving a child born with defects associated with the birth or some congenital problem. It may be taken, however, that the Plaintiffs may not wish to have the quantum issues determined until there is some stabilization. 28 Bearing those matters in mind, the Plaintiffs say that a separate trial is appropriate because if they are successful they will have the opportunity to apply for an interim payment and it is more likely that the whole case will settle than if liability remained an issue. On the other side, there is the benefit of finality for the Plaintiffs in the event that they are unsuccessful. In that case they will also be saved the not inconsiderable expense of preparing the quantum case. All of those matters are not without some merit. 29 However, they are matters which the primary Judge was required to, and did, weigh up. Her Honour's judgment was a judgment involving the exercise of discretion and it is necessary, as I have said, for the Plaintiffs to show a House v The King type of error. In my opinion, the Plaintiffs have not established such an error with the result that the appeal must be dismissed. 30 The Orders I make are these:

(1) Extend time for the filing of the appeal to 4 February 2010;

(4) The Plaintiffs are to pay the Defendants' costs of the Amended Notice of Motion.

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