Onakoya (through her legal guardian Matthew Onakoya) v The Sydney Children's Hospital Network

The factual background

1. The child was born six weeks prematurely in February 2019 at Liverpool Hospital. She was immediately transferred to the Neonatal Intensive Care Unit (NICU) at Liverpool Hospital. On 13 February 2019, the child was transferred to the NICU at CHW. While an in-patient she had a Magnetic Resonance Imaging (MRI) which did not detect any subdural haemorrhage, although other abnormal findings were detected. On 6 April 2019 the child was transferred to Bankstown Hospital.
2. On about 16 April 2019, the child was transferred back to CHW because she had difficulties with aspiration. On 19 April 2019, she was discharged in to the care of the father and mother to be fed nasogastrically.
3. On 12 May 2019, the father brought the child back to CHW and presented her at the Emergency Department. She exhibited signs consistent with subdural haemorrhaging. The child underwent a neurological consultation on 27 May 2019, as a result of which she was referred for an ultrasound of her head to assess the cerebrospinal fluid (CSF) spaces.
4. On 29 May 2019, an ultrasound of the child's head was performed. The report noted: "New left-sided anechoic subdural collection, without significant mass effect. Although non-specific, the possibility of non-accidental injury should be considered. Again, no septum pellucidum is identified and the corpus callosum appears slightly dysplastic."
5. On 30 May 2019, a CT scan of the child's brain was performed. The findings were as follows: "The scan findings are in keeping with bilateral subdural hygromas/chronic subdural haematomas overlying the frontal lobes bilaterally. There is no acute haemorrhage or skull fracture. The dysplastic corpus callosum and absent septum pellucidum are again noted"
6. On 3 June 2019, an MRI of the child's brain was performed. The report noted: "There is a T2 hyperintense and T1 intermediate extra-axial frontal fluid collection measuring up to 7mm in thickness on the left, most likely in keeping with chronic subdural hygromas. There is a similar right-sided subdural fluid collection measuring up to 2mm in thickness. The bilateral subdural hygromas remain largely unchanged in size compared to the previous CT. No acute/subacute haemorrhage. The septum pellucidum is not identified and the corpus callosum is dysplastic predominantly at the splenium."
7. The plaintiffs relied on a report of Dr Susan Marks, forensic paediatrician in the Child Protection Unit, in support of the requirements of UCPR, r 31.36. Dr Marks expressed the following opinion in her report dated 11 June 2019 (the Marks report): "OPINION [The child's] presentation with bilateral chronic subdural haematomas indicated a past injury to her head. It is not possible to date the injuries precisely based on appearance on medical imaging. The hematomas were not acute or subacute, indicating that the injury occurred more than two to three weeks prior to the CT scan being performed. The subdural haematomas were unexplained. There was no evidence of a skull fracture and the subdurals were not focal/localised as would be expected if the subdurals had been caused by an impact injury to the head. The distribution of the subdurals over the frontal lobes bilaterally was highly concerning for a part acceleration - deceleration (shaking) injury to [the child's] head. The absence of retinal haemorrhages does not alter this opinion: ● Retinal haemorrhages are not seen in all cases of shaking injury to infants ● The subdural hematomas were chronic indicating that they had occurred more than two to three weeks prior to the CT scan of her head being performed. If retinal haemorrhages were present at the time of injury they could have cleared in the time between the injury event and the eye examination Other possible causes of subdural haemorrhages were considered ● They were not due to birth injury ○ Chronic subdurals would typically be expected to have resolved by three months after trauma, whereas [the child's] subdurals were still quite prominent, especially on the right ○ The subdurals were not present on the MRI done at 10 days of age ● There was no evidence of any underlying bleeding disorder that would predispose [the child] to subdural bleeding ● There was no evidence of infection or other underlying medical condition to cause subdurals (note urine metabolic screen result is pending) ● There was no vascular abnormality identified When shaking injuries occur to infants they typically have symptoms that are immediately apparent to the lay observer. These symptoms can include apnea (stopped breathing) and floppiness. Oluwatomi was reported to have both these symptoms during the event that was reported prior to her presentation to hospital In summary, Oluwatomi's presentation with unexplained chronic bilateral subdural haemorrhages was highly concerning for a past inflicted (shaking) injury to her head"
8. CHW appears to have reported the matter to the Department of Communities and Justice (DCJ) at Central Metropolitan Joint Child Protection Response Program (JCPRP) for assessment. It was found that the father and the mother were the persons who had caused "actual physical harm" to the child. The father challenged the original assessment, which was reviewed. The review was conducted by Craig Willings, Investigator, Reportable Conduct Unit, and Cherie Smith, Director, Child Safety Review (the July 2021 review). The July 2021 review found that because the timing of the injury which caused the subdural haemorrhage could not be ascertained with precision, it could not be determined whether the child had sustained the injury while an in-patient at CHW, or elsewhere in the hospital system, or at home when she was in the care of her parents. By letter dated 1 November 2011, the JCPRP wrote to the father and the mother and said: "JCPRP has determined that in light of the new information provided by you and the associated inconsistencies in timeframes, there is insufficient evidence to conclude on the balance of probabilities that you are persons who caused harm to your child."
9. After the defendant had served its notice of motion, the plaintiffs obtained a document entitled "Medical Expert Opinion" dated 15 August 2022 from Dr Chika Blessing Maduka, a Nigerian medical practitioner (the Maduka report). According to Dr Maduka's curriculum vitae (CV), she graduated with a MBBS in Medicine and Surgery from the Ebonyi State University in January 2013. Her CV records that she was a "House Officer" at a Federal Teaching Hospital in Nigeria from June 2013 to October 2014 and where, among other areas, she did "Clinical Rotations in Paediatrics". There is nothing beyond this to indicate that Dr Maduka has any expertise in neonatal care or the treatment of seizures or brain injuries which may be the result of subdural haemorrhaging caused by trauma.

The UCPR

1. UCPR, r 7.14 provides: "7.14 Proceedings to be commenced or carried on by tutor (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor."
2. UCPR, r 13.4(1)(a) provides that proceedings may be dismissed if it appears to the court that they are frivolous or vexatious.
3. UCPR, r 14.28(1) relevantly provides that the court may strike out a pleading that has a tendency to cause prejudice, embarrassment or delay.
4. UCPR, r 31.36 provides for the service of experts' reports in professional negligence claims (which are defined as including claims against medical and related health practitioners and service providers) as follows: "31.36 Service of experts' reports in professional negligence claims (1) Unless the court orders otherwise, a person commencing a professional negligence claim … must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting - (a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. … (3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate. …"

The defendant's applications

1. The first question is whether the plaintiffs have complied with UCPR, r 31.36. However, there is an anterior question: whether the statement of claim sufficiently identifies the breach of duty alleged, the damage suffered and the causal connection between the breach and the damage.
2. The statement of claim is in the order of 16 closely typed pages long. It sets out in 84 paragraphs, each comprising more than one sentence, the circumstances of the child's birth and treatment. 41 exhibits are referred to in the statement of claim and are annexed to it. The exhibits largely comprise clinical notes relating to the care of the child by CHW but they also include the reports referred to above. Not only does the pleading allege wrongdoing on the part of CHW with respect to the child's care, it also alleges falsification of evidence, non-disclosure to DCJ and that the defendant has defamed the plaintiffs. The allegations in the pleading are made by "the plaintiffs" collectively. There is no attempt to differentiate the claim brought on behalf of the child from the claims brought by her parents.
3. The form of the pleading is embarrassing in that it does not confine itself to material facts. I accept Mr Kettle's submission that the defendant ought not have to plead to it and that, if the proceedings are not otherwise dismissed, the statement of claim should be struck out.
4. In the course of the hearing, the father (who, as referred to above, appeared on behalf of all three plaintiffs, without objection from the defendant) outlined what he said the child's case was. He submitted that the damage (the subdural haemorrhage) had been sustained before the child was discharged from CHW on 19 April 2019. He said that on 16 April 2019 (the day on which the child was transferred from Bankstown to CHW) he had actually seen a female doctor in the Emergency Department at CHW shake the child. He said that he had not appreciated at the time how serious that was. He and the mother took the child home on 19 April 2019, believing that the difficulties the child had were due to the fact that her birth had been premature. He also made several unparticularised allegations to the effect that CHW had falsified the hospital records to hide the negligence. The case which he articulated in oral submissions at the hearing of the applications is barely discernible from the statement of claim.
5. As to the plaintiffs' compliance with UCPR, r 31.36, the father submitted that the following three documents were sufficient to comply with the rule: 1. the Marks report; 2. the Maduka report; and 3. the July 2021 review.
6. In the Marks report, extracted above, Dr Marks said that the child suffered subdural haemorrhaging as a result of being shaken but that the evidence was not sufficient to determine when the injury was sustained and, thus, in whose care the child was when she suffered the injury. She does not address the question of breach of duty or the causal connection between breach of duty and damage. Although Dr Marks is an expert within the meaning of UCPR, r 31.36, her opinion does not meet the requirements of UCPR, r 31.26(1)(a), (b) or (c).
7. The Maduka report is more problematic. I do not accept that a qualified medical practitioner, without more, has the expertise to opine on the standard of care required of hospitals in New South Wales who are caring for neonatal patients. This is particularly so as Dr Maduka qualified in Nigeria. No detail is given about the content or length of the course which she undertook. I am not persuaded that she is a relevant expert, for the purposes of UCPR, r 31.36.
8. There are other respects in which the Maduka report fails to comply with UCPR, r 31.36. Dr Maduka purports to set out the facts (many of which can be assumed to be controversial), rather than express an opinion. A report does not need to be admissible as evidence, in order to comply with UCPR, r 31.36(1): Salzke v Khoury (2009) 74 NSWLR 580; [2009] NSWCA 195 at [59]-[64] (Ipp JA, Basten JA and Gzell J agreeing). However, it must include an opinion which addresses the matters in UCPR, r 31.36(1). The Maduka report fails to do so.
9. The July 2021 review does not appear to have been written by a relevant expert. Mr Willings is an investigator, who has collected and compiled information which he has obtained in the course of his investigation. The evidence does not establish that either he or Ms Smith has medical qualifications or other expertise which would permit either of them to give an opinion on the matters in UCPR, r 31.36(1)(a), (b) and (c). Further, the ultimate finding expressed was similar to that in the Marks report: that as the timing of the injury was uncertain, it was not possible to say whether the child was in the care of a hospital or of her parents when she sustained the injury.
10. I am not persuaded that UCPR, r 31.36 has been complied with. Subject to the matters referred to below, the proceedings ought, accordingly, be dismissed.

The plaintiffs' application

1. Because the proposed amended statement of claim does not constitute an improvement over the original statement of claim, I refuse leave to amend (for the reasons given above).

The further conduct of the matter

1. It is significant that the defendant did not submit that the child had no arguable cause of action against it. Summary dismissal was not sought on this basis. The defendant has, in the past, encouraged the father to obtain legal representation. By reason of the father's misreading of UCPR, r 7.15, he did not appreciate the significance of UCPR, r 7.14. The father indicated at the hearing that he would like to be referred to the Pro Bono Panel (the Panel). The purpose of the referral would be for a legal practitioner to advise the plaintiffs whether any cause of action has reasonable prospects of success, obtain a medical report that complies with UCPR, r 31.36 and draft a statement of claim in a form which complies with the UCPR.
2. My power to refer the matter to the Panel derives from UCPR, r 7.26, which confers power on this Court, if it is satisfied that it is in the interests of justice, to refer a litigant to the Registrar for referral to a barrister or solicitor on the Panel for legal assistance.
3. I do not have evidence of the plaintiffs' means. The father is an administrative officer employed by New South Wales Health. I apprehend that he has not retained a solicitor to act on behalf of the plaintiffs for financial reasons. The only way in which the proceedings can move forward is for the plaintiffs to obtain legal advice. The father's attempts to draft a statement of claim have been, understandably, insufficient to comply with the UCPR. The Court and the defendant are entitled to know the case which is being put on behalf of the plaintiffs. Further, a legal practitioner who is retained on behalf of the child might form the view that he or she cannot act for the father or the mother because of a potential conflict. These matters can only be worked through with the benefit of legal advice. I am satisfied that it is in the interests of the administration of justice for the referral to be made.

Costs

1. The defendant sought the costs of the applications. It has been wholly successful. The usual rule is that costs follow the event pursuant to UCPR, r 42.1. However, because I propose to make orders for the further conduct of the proceedings, and because the plaintiffs have not been heard on the question of costs, I will reserve the costs of the notices of motion.

Orders

1. For the reasons given above, I make the following orders and notation: 1. Strike out the statement of claim filed on 1 April 2022. 2. Refuse leave to the plaintiffs to file an amended statement of claim in the form of the draft annexed to the second plaintiff's affidavit affirmed 22 August 2022. 3. Refer the plaintiffs to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1). 4. Note that that second plaintiff does not have leave pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.14(2) to conduct the proceedings on behalf of the first plaintiff without legal representation. 5. Direct the plaintiffs to serve any proposed amended statement of claim on the defendant on or before 14 October 2022 and note that such document is required to have been drafted by an identified legal practitioner. 6. Direct the defendant to inform the plaintiffs whether they consent to the proposed amended statement of claim referred to in (5) above on or before 28 October 2022. 7. Direct the plaintiffs to file any notice of motion for leave to amend the statement of claim by 11 November 2022. 8. If the plaintiffs do not obtain the defendant's consent or the Court's leave to file an amended statement of claim by 30 November 2022, or such further time as the parties' consent or the Court allows, dismiss the proceedings. 9. Reserve the costs of the defendant's notice of motion filed on 20 July 2022 and the plaintiff's notice of motion filed on 25 July 2022.

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: 20 September 2022