McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400 | Case summary

Supreme Court of NSW|2013-09-03|Before: Barr AJ

Judgment 1The plaintiff was born on 4 August 2004 and is now nine years old. It is asserted that she was born with a dislocation and dysplasia of the left hip. 2The defendant was a general medical practitioner, specialising in obstetric and paediatric medicine. It is asserted that he examined the plaintiff on 5 August 2004. The tests he performed included a test for hip dysplasia. He reported her hips as normal. On 20 September 2004 a nurse employed by the defendant carried out on her a six to eight week health check which included testing the hips for dislocation. Her hips were recorded as normal. On 29 March 2005 another nurse employed by the defendant carried out on the plaintiff a six to eight month health check which included testing the hips for dislocation. Her hips were recorded as normal. 3On September 2005 the plaintiff attended the defendant's practice. She was examined there and a report was made about an extra fatty fold at the top of the left leg. On 13 January 2006 the plaintiff's mother told the defendant that the plaintiff was walking in a wonky fashion, leaning to the left, and was knock-kneed with her toes turned in, also that her legs were of different lengths. The defendant noted that the plaintiff was knock-kneed, was becoming pigeon-toed with a wobbly walk, was intoeing, could run but tended to trip from a standing start and had a swinging gait, but no Trendelenburg. The defendant measured the plaintiff's legs and advised that there was a small discrepancy in leg length which was insignificant and within the normal range. He advised a review after a further six months. 4In August 2009 the plaintiff was diagnosed with a dislocation and dysplasia of the left hip. 5The plaintiff asserts that the dysplasia and dislocation were present by 13 January 2006 at the latest and that the defendant was negligent in failing to diagnose that condition by that date. 6The defendant mostly admits the events pleaded up to 2 September 2005, though he takes issues with some details. He denies that the plaintiff saw a particular nurse, but not that she was seen by a nurse, on one of the occasions pleaded. The defendant denies negligence and pleads contributory negligence in that the plaintiff failed to follow the recommendation he made on 13 January 2006 for a review after a further six months. Instead the plaintiff sought no medical advice or treatment until August 2009. 7The plaintiff has moved the Court for an order under R28.2 Uniform Civil Procedure Rules (UCPR) that the issue of liability be determined separately from the issue of damages. The plaintiff asks the Court to set down her case for hearing on liability. Costs orders are sought. 8The Motion is opposed. 9Mr Cheshire, for the plaintiff, read the affidavit of the plaintiff's solicitor, Yevgen Shkuratov, made on 28 August 2013. Annexed were copies of reports written by two specialists, Dr Angus Gray, paediatric orthopaedic specialist dated 6 February 2013 and Associate Professor Quadrio dated 5 March 2013. Dr Gray is of the opinion that the full effects of the condition upon the plaintiff will not be able to be established until she is skeletally mature, say between the ages of 14 and 16 years. Dr Quadrio diagnoses adjustment disorder with anxiety, and differentially sub-threshold post-traumatic stress disorder. She is of the view that the plaintiff's condition is not stabilised from a psychological or psychiatric perspective and that it will not be possible to assess her psychiatric injuries completely until she is around 14-16 years old. 10The defendant takes no issue with that concurrence of medical opinion and the parties agree that no attempt should be made to assess the quantum of the plaintiff's loss until she reaches the stated age range. That will require a deferment of her claim in that respect for at least five years and probably more. 11Her case on liability could be heard and determined now.

The Principles 12It is for the party contending for that result to satisfy the Court that it is desirable for issues to be tried separately. Courts have in the past been reluctant to direct the separate trials of issues: see Tepko Pty Ltd v Water [2001] HCA 19;Board (2001) 206 CLR 1 at 169 - 170. In Idoport Pty Ltd & Ors v National Australia Bank & Ors [2000] NSWSC 1215, Einstein J said at [7]:- [7] Without examining specific cases in relation to the power conferred on the Court in Pt31, r2, I proceed on the basis of the following principles. (1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J. (2) In exercising the power under Pt31, r2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way: Pt1, r3 (1), r3(2) Supreme Court Rules. (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy: CBS Productions Pty Ltd v O'Neil [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J); (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D); (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J). (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra). (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra). 13More recently, no doubt in response to legislative changes, the Courts have been readier to separate issues. One reason for this change of approach, at least where plaintiffs are children, must have been the changes made in 2002 to the Limitation Act 1969. Whereas previously the time limited for the commencement of proceedings did not begin to run until the child became of age, the child is now deemed under s 50F (3) for the purposes of the commencement of the period to know what is known or ought to be known by a capable parent or guardian. One inevitable result of that change is that the Court may expect to receive claims on behalf of children claiming to be suffering disabilities many years before damages can be assessed. 14Another significant legislative change has been the introduction of the UCPR and an increasing emphasis in the Court on early determination of issues in order to achieve a just, quick and cheap resolution of proceedings. The Courts have, consistently with the view stated by Brereton J in Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 at [6], to be more prepared to intervene to separate issues in order to resolve significant parts of litigation expeditiously.

The Plaintiff's Submissions 15Mr Cheshire, for the plaintiff submitted that this case is not unlike that summarised by Wood CJ at CL in Thomas v Oakley [2003] NSWSC 1033, in which his Honour considered the following features as justifying the separation of issues. His Honour said at [27]:- (a) their separation would allow for the issue of liability to be determined closer to the relevant event and, therefore, potentially with greater reliability; (b) if the issue of liability were to be decided against the plaintiff, then there would be a very substantial saving in costs and Court time by avoiding an unnecessary and lengthy hearing on damages; (c) a favourable determination on the liability issue for the plaintiff would give rise to a real prospect of facilitating an out of Court resolution of the proceedings by way of mediation; (d) a favourable determination on liability would simplify and facilitate an application for an interim payment of damages under section 76E of the Supreme Court Act 1970; (e) there will be little or no overlapping of witnesses on the issues of liability and damages, so that there are minimal prospects of inconsistent findings, or of difficulties arising in cross-examining witnesses, if the issues are heard separately, and that; (f) it is premature to assess the plaintiff's damages because of his age, but it would be unfair to have the whole matter languishing in the list, waiting for him to reach an appropriate age for an assessment of damages to be undertaken. 16Mr Cheshire submitted that this was an appropriate case for the separation of issues. In particular there was little overlapping of witnesses on the issues of liability and damages, with minimal prospects of inconsistent findings or of difficulties of cross-examination if issues were heard separately.

The Defendant's Submissions 17It was principally on that last issue that the defendant submitted that this was not an appropriate case for an order separating the issues of liability and damages. Mr Downing drew attention to the manner in which the plaintiff had pleaded her case and to her responses to the defendant's request for particulars. Relevantly, the Statement of Claim is as follows:- 7. On 13 January 2006: (a) the Plaintiff attended the Practice; (b) the Plaintiff was seen and examined by the Defendant; (c) the Plaintiff's mother reported to the Defendant that the Plaintiff was walking in a wonky fashion, leaning to the left and being knock-kneed with her toes turned in; and that her legs were different lengths; (d) the Defendant noted that the Plaintiff: i. was knock-kneed; ii. was becoming pigeon toed with a wobbly walk; iii. was intoeing; iv. could run but tended to trip from a standing start; v. had a swinging gait with no Trendelenburg. (e) the Defendant: i. measured the Plaintiffs legs; ii. advised that there was a small discrepancy in leg length but that it was not significant; iii. advised that her legs and measurements were within normal range; iv. noted no abnormalities; (f) the Defendant provided reassurance and advised that the Plaintiff re-attend in six months' time for review ... 12. The Plaintiff suffered the injuries hereinafter set out by reason of the negligence of the Defendant, his servants or agents. PARTICULARS (i) He failed earlier and in particular on 13 January 2006 to diagnose dislocation and/or dysplasia of the left hip. (ii) He failed adequately to heed and/or disregarded the dislocation of the left hip and/or the leg length discrepancy and/or the findings of an extra fatty fold at the top of left leg, the Plaintiff being knock-kneed, pigeon toed with a wobbly walk, the Plaintiff intoeing, the Plaintiff tending to trip and the Plaintiff having a swinging gait with a Trendelenburg gait, which were suggestive of a dislocation and/or dysplasia; (iii) He failed properly to examine and/or test the Plaintiff; (iv) He failed properly to investigate the Plaintiff, in particular by x-rays of her left hip; (v) In the premises he failed to take all reasonable care for the health of the Plaintiff. The Plaintiff will rely upon the incidence of the said injury as being in itself evidence of negligence on the part of the Defendant, his servants or agents. 18In their request for particulars the defendant's solicitors said:- 1. In relation to the allegation in paragraph 7 (f) of the statement of claim that the defendant advised the plaintiff to re-attend in six months time for review, please specify: (a) Whether it is alleged the plaintiff sought review in or around that time by Dr Marshall or any other medical practitioner. If so, please specify. (b) If the answer to sub-paragraph (a) is no, please specify when the plaintiff next sought review by Dr Marshall or any other medical practitioner. (c) On the occasion of the next review/s, please specify the dates and details of the complaints made and to whom. (d) In relation to (c), what action was taken/advice given by Dr Marshall, or any other particular medical practitioner, in relation to the complaints? ... 2. In relation to paragraph 12 of the statement of claim: ... (b) in relation to sub-paragraph (i), specify what time period is meant by "earlier"? ... 19The responses were as follows:- 1 (a), (b), (c) and (d) Yes. In the period 13 January 2006 to August 2009, up until the Plaintiff was diagnosed with dislocation and dysplasia of the hip, the Plaintiff consulted Dr Marshall and/or Singleton Heights Medical Practice on the following occasions:- (a) 13 January 2006; (b) 4 April 2006; (c) 4 May 2006; (d) June 2006 (date indecipherable); (e) 8 June 2006 (f) 13 June 2006; (g) June 2006 (date indecipherable); (h) 20 June 2006; (i) 17 December 2008; and (j) 7 July 2009; On each and every occasion, the Plaintiff consulted Dr Marshall, her mother Ms Nicole Shuttleworth, requested him to:- (a) Measure the length of the Plaintiff's legs to ensure that they remained in the normal range and he did so; and/or (b) Observe the Plaintiff walk in a "wonky" fashion, which he also did. On at least two occasions in the period 13 January 2006 to July 2009, Ms Shuttleworth requested that Dr Marshall observe the Plaintiff walk in the corridor of Singleton Heights Medical Centre outside of his consulting room. On both these occasions the Plaintiff's walk was "wonky/wobbly", and she pointed this out to Dr Marshall. On each and every occasion, referred to above, Dr Marshall assured Ms Shuttleworth that the Plaintiff's leg length and/or the appearance of her walk:- (a) Was within the normal range; and/or (b) Would correct itself; and/or (c) If it did not correct itself, he would refer her to a specialist when she turned 13 years of age; and/or (d) Her condition was normal/fine. 2 ... b) one every occasion the Plaintiff consulted Dr Marshall as detailed in answer to question 1 herein. ... 20Mr Downing submitted that the pleadings and particulars supplied amounted to an allegation that on each of the 10 occasions particularised the plaintiff's mother had requested the defendant to measure the length of the plaintiff's legs and observe the plaintiff walk in a "wonky fashion". On at least 2 of those occasions the defendant saw the plaintiff walk in a wonky fashion. He in effect reassured the plaintiff's mother that there was no relevant abnormality and no need to see a specialist until age 13 at the earliest. By her answer to particular 2(b) the plaintiff alleged that the defendant failed to diagnose the plaintiff's hip dislocation and dysplasia on each of the 10 occasions particularised. 21Mr Downing submitted that the Court would therefore need to hear evidence from the plaintiff's mother and the defendant as to what took place at the various consultations between January 2006 and July 2009. There would be a factual dispute which the Court would have to resolve. There was evidence that there was no reference in Dr Marshall's notes about two attendances in June 2006 to any parental concern about the plaintiff's gait: the defendant disputed that complaints were made to him between January 2006 and July 2009 as asserted in the further and better particulars. 22Mr Downing also submitted that issues of credibility were likely to arise. There would therefore be a substantial overlap of witnesses and issues when it came to the damages hearing, assuming the plaintiff succeeded on liability. The Court would need to hear evidence from the plaintiff and her mother as to the symptoms from which she was suffering upon the various attendances upon the defendant. The Court would need to hear evidence from the defendant on those same matters. The Court would have to determine what the plaintiff's condition was at various points of time in order to permit a comparison between what her condition would likely have been but for negligence by comparison with the plaintiff's established condition at the date of trial. That would require a consideration of how advanced the plaintiff's symptoms were between January 2006 and her diagnosis in August 2009, what type of treatment she would have required if she had been diagnosed and what the probable result of surgery would have been if performed then. 23It was submitted that if the plaintiff succeeded on liability it was unlikely in view of the issues on breach, causation and damages, that an early determination on liability would substantially narrow the field of litigious controversy. 24Moreover, Mr Downing submitted, there was no clear demarcation between issues of liability and damages. Rather there was an overlap of issues including issues of credit. 25There was a real possibility that the separate resolution of the issue of liability would not finally determine the issue but merely result in an appeal, creating a multiplicity of proceedings.

Resolution 26I accept that the plaintiff's mother and the defendant will be essential witnesses in the determination of liability, particularly in the establishment of the time by which the defendant ought to have diagnosed dislocation or dysplasia. I accept also that issues of credit may need to be determined in the judgment of that issue. I doubt whether any resulting difficulty is likely to be as great as contended for by Mr Downing, though I have taken his submissions into account. 27Mr Downing also submitted that one possible result of the separation of the issue of liability might be an appeal by the unsuccessful party, creating a multiplicity of issues. I would have thought that that was always a risk in separating issues. Mr Downing did not point to any particular aspect of the case that made it particularly likely to produce such a result. 28In my view an early trial of the issue of liability is desirable. That will enable a more reliable determination. 29If the issue of liability were decided against the plaintiff then, subject to any appeal, there would be a substantial saving in costs. Prima facie there would need to be no hearing on damages. A verdict for the plaintiff on liability would promote the prospects of settlement out of Court or by mediation, achieving a just, quick and cheap resolution. 30These considerations outweigh the possible difficulties pointed to by Mr Downing. I am satisfied that it is appropriate to make an order separating the trial of issues. I make the following orders- (1)Pursuant to R28.2 UCPR, order that the issue of liability be determined separately from the issue of damages. (2)Refer the matter to the Registrar at 9am on 2 October 2013 to enable the plaintiff's claim on liability to be set down for hearing; (3)Order that costs of the Motion be costs in the proceedings.

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: 23 September 2013

McLean by her Tutor Nicole Shuttleworth v Marshall

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