Murphy & Ors v Chow

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

20122/99 KATIE-TARA MURPHY by her tutor VINCENT MURPHY & ORS v DAVID CHUN WAN CHOW

JUDGMENT 1 HIS HONOUR: The defendant in this matter has applied by way of notice of motion for orders: "1. That there be separate trials on the question of (a) liability and causation; and (b) damages. 2. Such further or other orders as the Court sees fit." 2 The application, pursuant to Part 31 rule 2, is opposed. 3 The defendant is a medical practitioner and was carrying on general practice at the Tindale Street Medical Centre in Penrith. It is alleged that at approximately 7.30 pm on 29 May 1998 the second and the third plaintiffs and their ten months old daughter, who is the first plaintiff, attended at the defendant's surgery seeking attention for the infant plaintiff. It is the plaintiffs' case that the defendant was negligent in his treatment of the infant plaintiff, that he failed to conduct an adequate examination of her, that he failed to carry out adequate investigation and that he failed to diagnose a meningococcal condition. The first plaintiff was allowed to go home with her parents after the examination and central to the plaintiffs' case is that the first plaintiff should have been admitted to hospital immediately for the purpose of necessary tests and examination. Had there been earlier detection of the disease which was afflicting her, it is contended that earlier and effective treatment would have avoided septicaemia which tragically led to below knee amputations and amputation of parts of all the fingers of each of the first plaintiff's hands. The claims of the second and the third plaintiffs are claims which depend upon the issue of liability being established in favour of the first plaintiff. 4 The evidence upon which the defendant relied in support of the motion comprised the following: affidavits of Rebecca Barnes affirmed on 28 January and 4 March 2003; an affidavit of Benjamin Cran sworn on 27 May 2002; and affidavits of Keely Louise Graham sworn 6 December 2001 and 27 February 2002. The plaintiffs relied upon affidavits of Andrea Omerou sworn 28 February 2002 and Malcolm Charlton sworn 7 February 2003. Having read the various affidavits I have identified, I do not find it necessary to refer extensively to the evidence contained in the affidavits for present purposes. 5 I here observe that the notice of motion presently before the Court was filed as long ago as 7 December 2001. Between the time that the notice of motion was filed and the time it came on for hearing there was a joint conference of experts and it would seem that this accounts for the delay in having this notice of motion listed for hearing. 6 Ms Barnes' analysis of the conclusions of the joint experts expressed in para 10 of her affidavit of 28 January 2003 is that the experts concluded: "(a) The first plaintiff suffered from meningococcal septicaemia, not meningococcal meningitis;

(b) The diagnosis of meningococcal septicaemia is not usually made until a characteristic rash appears and prior to its appearance there are no diagnostic clinical features;

(c) On the defendant's assumptions, all experts agreed that Dr Chow's management was reasonable;

(d) On the plaintiffs' assumptions, most of the experts thought the first plaintiff should have been diagnosed as possibly toxic and sent to hospital with suspected sepsis following review by Dr Chow. Dr Walsh, however, believed that the management was appropriate on the plaintiffs' assumptions;

(e) If the first plaintiff had presented to Nepean Hospital she would have undergone various routine testing but that testing would not, on the balance of probabilities, have revealed the first plaintiff's meningococcal septicaemia;

(f) A definitive diagnosis of meningococcal septicaemia would not have been made until a rash appeared;

(g) If the first plaintiff had presented to Nepean Hospital as clinically toxic she would have received antibiotics;

(h) If the first plaintiff was not toxic on clinical examination she would have received antibiotics therapy when she developed the meningococcal rash at 7.30 am;

(i) Even if antibiotics had been given at 10 pm on the previous evening there is no firm scientific evidence to indicate that the first plaintiff would have had a better outcome." 7 In consequence of the joint experts' conclusions, it was the defendant's contention, expressed in the affidavit of Ms Barnes, that liability and causation issues could be dealt with in seven to ten days. 8 It is the plaintiffs' contention that the report following the conference of experts was flawed and the affidavit of Malcolm Charlton of 7 February 2003 addresses this. Part 36 r 13CA(6) provides: "Where, pursuant to this Rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, the party affected may not, without leave of the court, adduce expert evidence inconsistent with the matter agreed." 9 No application requiring consideration of the above sub-rule has been made and at the present time the report has the consequences provided for by the rule. It is not to be assumed, and I do not assume, that leave will be granted in this case pursuant to Part 36 rule 13CA(6). It would be altogether inappropriate for me to express a view on the possible outcome of such an application were it to be made because the matter simply has not been argued on this application. I add that in presenting his submissions Mr Levy did not assume any grant of leave under Part 36 rule 13CA(6). 10 As is apparent from Ms Barnes' analysis of the conclusions of the experts, they were presented with alternative sets of factual assumptions, intended to reflect the accounts of the adult plaintiffs as to what occurred in the defendant's surgery and, alternatively, the defendant's account as to this. 11 According to the parents, the history with which the defendant was presented included that the child had had a high fever, was lethargic, was breathing quickly and had cold hands and feet. On the other hand, the defendant's history emerges from para 5 of the notice of grounds of defence. The defendant claims he obtained a history that the child had an elevated temperature at four o'clock that afternoon and had had white rhinitis for a week. The defendant denied he was given a history that the plaintiff was uncharacteristically lethargic or that she had been breathing rapidly or that she had lost her appetite. It is also in contention as to whether the child was red in the face and chest, whether she was hot to touch on her face and chest, and whether her hands and feet were cold to touch. 12 The defendant submitted that those factual issues would not take long to determine and, consistently with Ms Barnes' analysis of the conclusions of the experts and the time that would be occupied on medical evidence as to liability and causation, Ms Barnes' assessment is that two weeks altogether would suffice to determine the issue of liability. 13 On the other hand on the defendant's analysis, it is submitted that a combined trial on liability and damages would take no less than six weeks. In the earlier of Ms Graham's affidavits, there is reference to the service of reports of sixteen experts on damages. Her anticipation was that there would be approximately fifty-five to sixty expert reports eventually from thirty experts and that there would also be lay witnesses to be called on damages. 14 Another consideration, and this is addressed in para 28 of Ms Graham's affidavit, is that on the defendant's analysis it is premature to determine the issue of damages at this early stage of the child's development. Discrete areas where this is so are referred to in para 28 of Ms Graham's affidavit of 6 December 2001. They include issues of cognitive function, education, vocation, surgical revision, care and assistance, mobility, speech therapy, occupational therapy, case management, psychological status, hand function and fine motor skills, bowel and bladder control and control of seizures. 15 A further consideration advanced for an early trial limited to liability and causation is the possibility of substantial savings on costs. In the event that liability is determined against the plaintiffs then the effect of an order for separate trial now would be to avoid all the costs that would otherwise be incurred from this point on by reason of the matter proceeding to trial on all issues. 16 Moreover it is submitted that if the issues of liability and causation are determined in favour of the plaintiff, this will enable a scheme of interim payments to be put in place prior to the ultimate hearing on damages. 17 The plaintiff's opposition to the proposal for separate determination was first voiced in February 2002 in a letter written to the defendant's solicitors which forms annexure B to the affidavit of Andrea Omerou earlier mentioned. It was then contended that it would not be possible in a practical way to separate questions of causation from questions of damages. That was developed in submissions advanced on the hearing of the motion. Mr Levy submitted that no sharp line could be drawn between damages and liability and consequently a separate trial would not avoid overlap. 18 Whilst the plaintiff's rash was first observed at 7.30 am on 30 May 1998, it was submitted that it did not follow that the meningococcal septicaemia could not have been detected earlier had the plaintiff been under observation in hospital. It was Mr Levy's submission that the time of introduction of antibiotic therapy was significant and para 9 of the joint report of the experts left open as an issue whether and to what extent the plaintiff would have been better off if antibiotic therapy had been introduced earlier. Mr Levy submitted that it would be necessary on any trial as to liability to consider what he referred to as the "time line" between the attendance in the doctor's surgery at 7.30 pm and the events culminating in the completion of surgical procedures at 5.30 pm on the following evening. Developing the submission that causation and damages issues are intertwined, it was argued for the plaintiffs that a separate trial would not avoid having to revisit questions of timing of referral of the plaintiff to hospital and the timing of administration of antibiotic treatment. Those questions in turn would affect the plaintiff's entitlement to damages in respect of development and extent of brain damage, the need for amputations and hence for prostheses, and the level of attendant care and supervision. 19 Mr Levy submitted that the time estimate proposed by the defendant if the separate trial application was acceded to was inadequate and, indeed, that it was a gross underestimate. It was submitted on behalf of the plaintiff that a separate trial on liability could be expected to take one month rather than two weeks. 20 It was further submitted not only that the estimate of the time that would be occupied on the issue of liability was very much in contention but so too was the estimate as to how long it would take to deal with the issue of quantum. Mr Levy submitted that whilst there were many heads of damages many of those heads gave rise to uncontroversial issues which could be expected to be the subject of mathematical agreement at least. Based on experience, I am inclined to think that there is substance in this. 21 There is much authority that bears upon the appropriate exercise of the power conferred by Part 31 rule 2. Plainly it is not enough for a party seeking an order under Part 31 rule 2 to prove that a trial would be shorter and cheaper if limited to liability and causation, and that if the plaintiff lost on these issues the costs and time spent on a hearing as to damages could be avoided. That much would be true in every case involving contentious issues as to damages, yet it is generally appropriate that all issues should be determined at the one trial. In Idoport Pty Limited v National Australia Bank Limited & Ors [2000] NSWSC 1215 Einstein J conveniently summarised relevant principles in the following passage: "Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, 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 Part 31, Rule 2, 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: Part 1, Rule 3 (1), (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)." 22 I remind myself also of recent statements in the High Court concerning the separate determination of issues. These statements demand a cautious approach to applications such as that which I am presently considering. 23 In Perre & Ors v Apand (1999) 198 CLR 180 Callinan J said at para 436: "Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid…" 24 In Tepko Pty Limited & Ors v The Water Board (2001) 206 CLR 1 Kirby and Callinan JJ said in their joint judgment at paras 168-170: "[168] The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P (Tepko Pty Ltd [1999] Aust Torts Reports 81-525 at 66,317) and Fitzgerald JA (Tepko Pty Ltd [1999] Aust Torts Reports 81-525 at 66,325) were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd (1999) 198 CLR 180 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. [169] 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. [170] 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." 25 In the same case Gaudron J expressed her agreement with the above observations of Kirby and Callinan JJ (see para 52). 26 Each case in which an order is sought under Part 31 rule 2 calls for careful consideration on its own particular facts. Very often, of course, there are both possible advantages and possible disadvantages of ordering a separate determination of an issue or issues. It seems to me, after reflecting on the competing submissions, that this is such a case, but ultimately before making the orders here sought I should be persuaded that the utility, economy and fairness of the trial to be embarked upon in consequence is clearly established (see Tepko Pty Limited (supra) at para 170). 27 The competing submissions I have earlier endeavoured to summarise, considered in conjunction with my assessment of the relevant features of the case, leave me in the position where I am not satisfied that I should make the orders sought. 28 To my mind it has not been established that a separate trial on liability and causation would have that saving of time for which the defendant contends. No doubt there would be some saving but I am not satisfied that it would be so significant as to warrant the order sought. It seems to me there is considerable substance in Mr Levy's contrary submissions reviewed in paras 17-20 above. Obviously the second and third plaintiff would be required to give evidence at both trials if separate trials are ordered but so, as I see it, would medical witnesses. I do not accept the submission that there is a clear division of the issues of liability and causation on the one hand and damages on the other hand for the very reasons adverted to by Ms Omerou in her affidavit and later addressed in Mr Levy's submissions. There are intertwined issues between liability and causation on the one hand and damages on the other hand. 29 Further, I am not satisfied that a trial on damages would occupy four weeks notwithstanding the service of all the reports to which Ms Graham's affidavits make reference, accepting as I do that in respect of many of the heads of damages there is room for agreement, at least as to mathematics. Effective case management should reduce areas of controversy and consequently the hearing time for the issue of damages. 30 It is not to be overlooked that where a separate trial on the issue of liability is ordered there is going to be delay between the time that a judgment is published on the issue or issues first determined and the appointment of a hearing date for the trial of the remaining issues should the issues first determined be determined in the plaintiff's favour. 31 For the above reasons, the conclusion I have come to is that the notice of motion should be dismissed.

2. Costs of the motion to be plaintiff's costs in the cause. **********

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