O'Reilly v Western Sussex Hospitals NHS Trust

CATCHWORDS : Stay of proceedings - Proceedings brought in this Court - Whether this Court a "clearly inappropriate forum" - Relevant principles

Civil Liability Act 2002 (NSW), s 5O LEGISLATION CITED : Compensation to Relatives Act 1897 (NSW Fatal Accidents Act 1976 (UK) Uniform Civil Procedure Rules 2005 (NSW), r 11.2, Schedule 6

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 Henry v Henry (1995-1996) 185 CLR 571 McGregor v Potts (2005) 68 NSWLR 109 CASES CITED : Murakami v Wiryadi & Ors [2010] NSWCA 7 Oceanic Sun Line Special Shipping Company Inc v Fay (1987-1988) 165 CLR 197 Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265 Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538

Plaintiff - Sue Ellen O'Reilly First Defendant - Western Sussex Hospitals NHS Trust PARTIES : Second Defendant - Charles Wood Third Defendant - Manoj Sen Fourth Defendant - Mansour Poushin

FILE NUMBER(S) : SC 2009/297950 (formerly 2009/20547)

Mr Bartley SC (Plaintiff and Respondent to this Motion) COUNSEL : Mr McManus (D1 & the Applicant to this Motion) Mr McManus (also appeared vicariously for D2 & 3)

SOLICITORS : Beilby Poulden Costello (Plaintiff and Respondent to this Motion) Kennedys (D1 & the Applicant to this Motion)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

2009/297950 (formerly 2009/20547) Sue Ellen O'Reilly v Western Sussex Hospitals NHS Trust & 3ors

JUDGMENT 1 HIS HONOUR: The plaintiff Sue Ellen O'Reilly is the widow of David O'Reilly who died in England on 2 November 2006 aged 55. Shortly stated, it is alleged that the deceased died from cancer by reason of failures in diagnosis and treatment. The plaintiff has commenced proceedings by way of statement of claim in this Court seeking damages on her behalf and on behalf of the children of her marriage with the deceased. Proceedings have been commenced against the first defendant being responsible for operations at St Richards Hospital Chichester, in the United Kingdom, where the deceased was examined and treated and three doctors have also been joined in the proceedings as defendants, it being alleged that each of them had a role in the care of the deceased at material times. 2 The application presently before the Court is an application brought by the first defendant seeking an order that the proceedings in this Court be permanently stayed. In making the application, Mr McManus on behalf of the first defendant acknowledged that it would be vicariously liable for any negligence established by the plaintiff against the third and fourth defendants in relation to their involvement in the treatment of the deceased. Those defendants were not independently represented on this application; nor was the second defendant represented here but the Court was informed that the plaintiff would not be proceeding against the second defendant. Indeed a notice of discontinuance as against the second defendant was filed on 12 April 2010. 3 The basis of the application is that in all of the circumstances of this case this court is a "clearly inappropriate forum" to entertain the proceedings. 4 The plaintiff resists the application brought by the first defendant. 5 To support the notice of motion, affidavits by Raylee Hartwell affirmed on 6 April 2010 and by Sheena Leibowitz affirmed on 7 July 2010 were read. In opposing the application, reliance was placed upon the affidavit of the plaintiff sworn on 24 February 2010. It is unnecessary to refer to the content of these affidavits in any detail. 6 The facts as pleaded in the statement of claim can be summarised thus:

In June 2003 the deceased consulted the second defendant as his general practitioner in the United Kingdom. The complaint on consultation was of rectal bleeding for a period of some months.

The second defendant referred the deceased to Mr Simson, a consultant surgeon at St Richards Hospital, and the deceased was advised that investigation as to the cause of the bleeding was necessary.

On 19 August 2003 the deceased consulted Dr Sen, the third defendant, who was a consultant surgeon. Dr Sen advised that it was necessary for examination of the left colon to be carried out by means of a flexible sigmoidoscopy.

On 12 November 2003 the deceased was seen by the fourth defendant, Dr Poushin, who carried out an endoscopic investigation by flexible sigmoidoscopy. Following this Dr Poushin reported that the investigation showed a normal bowel and the first defendant advised the deceased accordingly.

In the latter half of 2005 the deceased suffered abdominal pain, weight loss and exhaustion and on 5 April 2006 he consulted a general practitioner, the locum tenens for the second defendant, and he diagnosed an irritable bowl syndrome.

On 21 April 2006 the deceased consulted the second defendant again who also diagnosed irritable bowl syndrome.

On 26 July 2006 the deceased suffered acute worsening of his abdominal pain, as well as severe vomiting. He was admitted to hospital on that date and on the following day he underwent a laparotomy procedure at which time a large primary tumour was found in the upper descending colon, with secondary tumours in the liver.

It was determined that only palliative care could be afforded to the deceased and he was discharged from St Richards Hospital on 8 September 2006. He was readmitted there with bowel obstruction on 27 September 2006 and had a laparotomy procedure on 12 October 2006. He was discharged to St Catherine's Hospice in the United Kingdom on 31 October 2006 and he died there on 2 November 2006. 7 The negligence alleged concerning the treatment of the deceased is that there was a failure to perform a colonoscopy; alternatively there was a failure to perform a barium enema after the flexible sigmoidoscopy; and further that there was a failure to diagnose a precancerous polyp or polyps during the tests and screening carried out in November 2003. 8 The plaintiff and two of the children on whose behalf the claim is brought now live in New South Wales, after leaving England in 2008. According to the plaintiff's affidavit the eldest of the children, Laura Frances O'Reilly, is 24 years of age and is studying history at the University of Cambridge. The second eldest child, Jordan Brian O'Reilly, is 22 years old and is a student at the University of Sydney. The youngest child, Shane Jesse O'Reilly, is 20 years old and is profoundly disabled, having suffered from cerebral palsy since birth. Shane lives with and is being cared for by his mother. He is fully dependent, and requires 24 hours per day care. 9 Prior to his death the deceased had assumed the role of Shane's principal carer. The plaintiff has deposed that the family plan was that the family would continue to live in the United Kingdom and that the deceased would work part time as a university lecturer in political science. 10 The plaintiff was employed as a senior journalist with a national British newspaper at the time of her husband's death and she did hope to stay in the United Kingdom when her husband died. However the plaintiff was unable to do so and returned to Australia because of her disabled son's needs. The plaintiff has deposed that back in Australia she has the benefit of support from other members of her family in caring for her disabled son. The plaintiff asserts that she is now working only part time because of her responsibilities towards Shane. The plaintiff deposes that her income as a part time journalist is modest, amounting to $20,000 per year. The plaintiff has no savings. Her parents assisted her in purchasing a home at Forestville. The plaintiff has further deposed that if her claim had to be pursued in the United Kingdom she would be unable to attend the hearing in essence because of her financial restrictions and her need to care for Shane. 11 In paragraphs 10-13 of the plaintiff's affidavit the following picture emerges as to Shane's lifestyle: "10. Shane's daily care routine is complicated. He wakes at approximately 7.00am. I have the benefit of assistance from Homecare for one hour to dress him, medicate him, tube feed him and groom him in preparation for the day ahead. On any given evening I will be awoken between three and six times to attend to Shane's needs. He sleeps in an adjoining room. He calls out to me when he has some difficulty such as having go to the toilet or if he has pain or discomfort which requires attention.

11. Shane attends a Spastic Centre program known as the Brookvale Manly Community Access Scheme. He is collected at about 8.30am by bus and is returned at about 3.15pm. This routine is for five days each week. Following his return home he has needs for therapy which I provide. In addition to transporting him to and from medical appointments, I undergo activities with him which assists in his general wellbeing both psychologically and physically. I have assistance between 4.00pm and 6.00pm on Thursday and Friday where a carer comes in and assists me with providing activities which can stimulate and entertain Shane.

12. Shane needs care with toileting, feeding, dressing and with entertaining and occupying his time. He cannot be transported without a wheelchair. I was forced to purchase a wheelchair accessible motor vehicle at a cost of $60,000.00 which has a ramp making it easier for me to take him on activities. I continue with his care each evening until about 8.30pm when he goes to bed. At this time I try to work for a few hours and go to bed myself by about 11.00pm.

13. I left the United Kingdom with no substantial assets. My parents assisted me to purchase the family home in Forestville. My part time journalist income is approximately $20,000.00 per annum. I am in the process of applying for a carer's pension which I hope will help supplement that income. When I first returned from the United Kingdom I was able to obtain employment with a Health Department Task Force providing media assistance. I was able to be very flexible in that job. It paid $80,000.00 gross per annum. I was however unable to cope with the combination of that job and Shane's care needs and was forced to give it up after twelve months. My financial situation has been dire since." 12 The plaintiff was not required for cross-examination and for the purposes of this application I accept the evidence in her affidavit. 13 In his comprehensive written submissions, Mr McManus properly acknowledged that this Court has jurisdiction under r 11.2 of the Uniform Civil Procedure Rules 2005 (NSW) and Schedule 6. Under Schedule 6, originating process in proceedings may be served outside Australia (inter alia): "(e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring". 14 It is the plaintiff's case that Shane has lost the support of his principal carer, the deceased, and there has been an ongoing loss suffered in New South Wales. For present purposes the defendant accepts that the plaintiff herself has suffered damage in New South Wales. Nor does the defendant submit on this application that the jurisdiction of this Court ought not to extend also to the two older children, should the proceedings commenced here not be stayed. 15 However, whilst the first defendant accepts that this Court has jurisdiction, it submits that the proceedings here should be permanently stayed and that the plaintiff should be required to pursue any available remedy in the United Kingdom where a statement of claim has also been filed recently. Mr Bartley SC informed the Court that it was not intended to take any action on those proceedings in the United Kingdom unless proceedings in this jurisdiction are stayed. 16 The jurisdiction of this Court to order a permanent stay is not in question. The issue is whether the Court should in the exercise of its discretion now bring these proceedings to an end.

17 What are the relevant principles which govern an application for a stay of proceedings in favour of a foreign forum? 18 These principles have been determined in Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 when the High Court applied the approach of Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1987-1988) 165 CLR 197 at 247-248, adopting the "clearly inappropriate forum" test in preference to the "clearly more appropriate forum" test. In the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ, in Voth their Honours said at 558: "The "clearly inappropriate forum" test is similar to and, for that reason, is likely to yield the same result as the "more appropriate forum" test in the majority of cases. The difference between the two tests will be of critical significance only in those cases -- probably rare -- in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum." 19 The principles expressed in Voth were restated in Henry v Henry (1995-1996) 185 CLR 571. In the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ their Honours said at 586-587:

"In Voth v Manildra Flour Mills Pty Ltd , this Court confirmed its rejection, in Oceanic Sun Line Special Shipping Co Inc v Fay , of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. The Spiliada principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate. ….

In Voth , this Court adopted for Australia the test propounded by Deane J in Oceanic Sun , namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant connecting factors' and a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried `suitably for the interests of all the parties and for the ends of justice"'."

The submissions of Counsel 20 I have had the benefit of very thorough and thoughtful submissions from counsel in this matter. 21 Mr McManus submitted that this Court is a clearly inappropriate forum having regard to the following matters:

(b) The law to be applied in the assessment of damages is English law.

(c) The law to be applied in determining whether the tort of negligence was committed is English law.

(d) The relevant hospital is conducted in England and the third and fourth defendants live and practice in Europe. Dr Sen practices in Germany now and Dr Poushin practices in Sweden.

(e) Dr Wood is in general practice near Chichester in England.

(f) Mr Simson is practising as a consultant surgeon with the first defendant and he also has private patients.

(g) Further, evidence from England will be required in this case to prove what was appropriate medical practice in England in 2003in the circumstances of this case. In particular, Mr McManus submits and I accept for present purposes that it is contemplated that (i) a consultant colorectal surgeon would be required to give evidence relevant to whether or not the treatment afforded by the third and fourth defendants was consistent with appropriate medical practice.

(ii) a specialist from the hospital would be required to give evidence in relation to NHS practices in a case such as this. 22 It is also submitted that the defendant would wish to prove what the deceased would have been likely to earn had he survived. The deceased, shortly before his death, had been awarded a PhD in political science and it was intended that he would work on a part time basis as a lecturer at a University so as to be able to take the major role in caring for Shane in the future. It is submitted that there will be a need for the defendant to be able to prove the deceased's likely income against this background, and this would involve an English witness or witnesses absent any agreement. 23 Mr McManus next submitted that the need for expert evidence as to the relevant law produced an element of prejudice for the defendant. 24 Mr McManus submitted that there would be considerable inconvenience and increased costs associated with the introduction of evidence from the United Kingdom and elsewhere in Europe if this matter proceeds in New South Wales. Moreover, there will be the inevitable practical difficulties of securing the attendances of overseas witnesses, having regard to the disruption to their practices and this is illustrated by letters from Dr Poushin and Mr Simson which form attachments to the affidavit of Ms Leibowitz. 25 Mr McManus submitted that if the litigation proceeds in the United Kingdom, evidence concerning the provision of care for Shane and the associated cost of it could probably be introduced by way of expert reports and by evidence given on video link. 26 In resisting this application, Mr Bartley submitted that it ought not to be concluded that this Court was a clearly inappropriate forum. Not only does the Court have jurisdiction to entertain this claim but Mr Bartley submitted that there are a number of features of this case to be weighed in the plaintiff's favour:

(a) The claim on behalf of the disabled child, Shane, is the principal claim being pursued and is one which warrants a substantial award of damages. Shane might have expected to have enjoyed care and support from the deceased for many years but for his untimely death.

(b) Mr Bartley submitted there will be the need to call a significant number of lay witnesses being family members who have contributed to the care Shane has been given since his return to Australia.

(c) It was further submitted that there will be a need for expert evidence to be called in the plaintiff's case as to the nature and the extent of the ongoing care that will be required and how it is now to be provided in the absence of the deceased. The evidence to address the cost of caring for Shane will hence require the calling of a considerable number of Sydney witnesses. It is likely that the deceased would have pre-deceased Shane in any event, but there will be a need for evidence to be given as to Shane's life expectancy.

(d) The plaintiff will be required to give evidence not only in relation to the claim advanced on behalf of her son Shane but also concerning the deceased's condition and presentation at the time he was seeking treatment in 2003. Mr McManus indicated that there will be an issue of causation, even if it be proved that the medical intervention in 2003 was inadequate. There may have been nothing to detect and treat in 2003. Hence Mr Bartley submitted the plaintiff may well be required to give evidence as to the deceased's presentation and complaints between 2003 and the time that the primary tumour was ultimately detected. I note in the history recorded by Dr Gavaghan (Exhibit 1) it is stated that in April 2005 the deceased complained of exhaustion, abdominal discomfort and weight loss. Evidence the plaintiff may be able to give as to these matters and when she first became aware of them could assume significance. 27 Mr Bartley drew attention to the plaintiff's affidavit and her evidence contained therein that she would be unable to attend on the hearing if the proceedings were to take place in England. Not only would she be unable to attend the hearing in England, but it was submitted that the plaintiff would experience difficulty in giving appropriate instructions to solicitors in England if the case was to proceed there. In this regard I note paragraph 20 of the plaintiff's affidavit. 28 Whilst expert evidence would be required as to relevant English law if the cause proceeds in New South Wales, Mr Bartley submitted that such relevant law was unlikely to be contentious. The statement of claim refers to the Fatal Accidents Act 1976 (UK), and Mr Bartley submitted that the provisions of that statute are analogous to the provisions of Compensation to Relatives Act (1897) in New South Wales. As to the law governing the duty and standard of care owed by medical practitioners, Mr Bartley pointed out that the standard set in England in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 is now relevant in New South Wales by reason of s 5O of the Civil Liability Act 2002 (NSW). 29 I have reviewed above what I perceive to be the principal submissions advanced by counsel and I have reflected upon them.

Consideration and Conclusions 30 I add that Mr McManus referred me to the decision of Brereton J in McGregor v Potts (2005) 68 NSWLR 109. In McGregor his Honour ordered a permanent stay of proceedings in contemplation of the availability of a cause of action in England. His Honour determined in that case on the application of the Voth principles that New South Wales was a clearly inappropriate forum, and Mr McManus submitted that the facts in McGregor were similar to the facts in the present case. 31 I have closely considered McGregor but of course each case must be determined weighing its own particular facts and circumstances. 32 It is to be noted, for instance, that in McGregor Brereton J observed (at para [76]) that there was nothing to suggest that the plaintiff was unable or unwilling to travel and no evidence was adduced of any significant prejudice to her in the event that her case proceeded in England rather than in New South Wales. The position of the plaintiff in the present case is very different. 33 The plaintiff has here deposed that she cannot afford to travel to England for the duration of Court proceedings and that she could not in any event leave Shane without her assistance in New South Wales. Further, she could not afford to take him to England even if it was practicable to do so. Paragraph 16 of her affidavit is in these terms:

"I do not have the means to travel to the United Kingdom for the duration of court proceedings. I could not leave Shane in Australia. He would need my assistance. I cannot afford alternative care nor do I think it would be in Shane's' interests for there to be a lack of continuity. He is used to and relies upon my personal attention. In order to transport the two of us to the United Kingdom, we would have to fly business class on account of his spasticity and severe physical problems. I would have special needs in respect of transport, care and accommodation in the United Kingdom. I do not have the means to meet those costs and believe that it would be detrimental to Shane's health and wellbeing if his current care regime had to be interrupted in that way." 34 The plaintiff was not challenged by cross-examination as to the above assertions, and I accept for present purposes what the plaintiff has said. I must give appropriate weight to that evidence. 35 There is no legal barrier to the plaintiff pursuing her cause in England where proceedings have been commenced but are in effect on hold depending on the outcome of the present application. Whilst the plaintiff could seek redress in England I am satisfied that the plaintiff would be very seriously disadvantaged by not being present at the hearing if her case was to proceed in England, and this for obvious reasons. As well as being deprived of the opportunity of attending the trial and observing the conduct and progress of it, the plaintiff would lose the opportunity of being present to give immediate instructions in response to any unexpected development occurring in the hearing that demanded a swift response. The plaintiff would also be disadvantaged by having to instruct solicitors in England from her home here in Australia for the purposes of preparing the case for trial. 36 Of course there is a corresponding disadvantage to the defendants, should they be required to continue to instruct solicitors in Australia in the event the litigation proceeds here. However I note from Annexure C to the affidavit of Ms Hartwell that the solicitors for the defendant have world wide offices, including an office in London. 37 If the hearing takes place in New South Wales the defendants would need to have somebody with appropriate authority to observe the progress of proceedings and to give instructions. By contrast with the plaintiff's position however, it is not suggested that the necessary attendance could not be arranged. 38 Plainly the defendants will incur significant additional costs and inconvenience for witnesses required to be called should the stay of proceedings be refused. I am mindful in considering this of the estimated costs referred to in the affidavit of Ms Hartwell and in particular in paragraphs 38, 40, 41, 42, 44, 45, and 46. As to considerations concerning costs and inconvenience should this application be refused, Mr Bartley submitted that the defendants' difficulties could be ameliorated by evidence being taken in London or elsewhere in the United Kingdom pursuant to the Uniform Civil Procedure Rules 2005 (NSW). Mr Bartley informed the Court that the plaintiff would consent to any appropriate orders to enable evidence to be taken in this manner. 39 If the hearing takes place in New South Wales the Court will be called upon to apply foreign law, but it seems to me that there is substance in the submissions that Mr Bartley made as to this. Whilst the need to apply foreign law is a source of prejudice, it does not necessarily follow that this renders this Court a clearly inappropriate forum: see Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265 and Murakami v Wiryadi & Ors [2010] NSWCA 7, and the dicta of Spigleman CJ at [150] and [151]. 40 Mr McManus fairly acknowledged in the course of submissions that he did not anticipate, if the hearing proceeds in this State, that there would be the need to bring here an expert as to the English Law to be applied. Any necessary evidence as to this could be given by video link, if it is not the subject of agreement. I do not dismiss from consideration the circumstance that this Court would be required to apply English Law, but I do not see this as presenting a major problem on the present application, having regard to similarities of legal principles relevant in the United Kingdom and in this State. As I see it, what is significant is that there will be a need to determine (applying the Bolam test recognised here) whether the manner of treatment of the deceased at St Richards Hospital accorded with procedures regarded as proper by a responsible and duly qualified body of English medical opinion, having regard to the time and place of the deceased's treatment. 41 Whilst there are many features advanced by Mr McManus that favour the plaintiff's claim being pursued in the United Kingdom, I remind myself that my task is not merely to perform a balancing exercise. Having considered the matters relied upon by Mr Bartley, particularly the circumstances of the plaintiff and her disabled son, I am not persuaded, by reference to the Voth test, that this Court is a clearly inappropriate forum. Hence I conclude that this application should be refused. Costs should follow the event.

2. I order that the defendant pay the plaintiff's costs of this application. **********

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