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

Procedural history

1. The plaintiffs' claim is fully described in the judgment of Adamson J (as her Honour then was) which dealt with the defendant's notice of motion dated 20 July 2022: [2022] NSWSC 1261. The defendant sought inter alia summary dismissal. In the alternative it sought an order striking out the plaintiffs' pleading. Her Honour made the following orders: "Strike out the statement of claim filed on 1 April 2022. 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. 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). 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. 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. 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. Direct the plaintiffs to file any notice of motion for leave to amend the statement of claim by 11 November 2022. 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. 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."
2. On 25 November 2022, the matter was before Garling J for hearing of the plaintiffs' motion filed 20 October 2022. His Honour, inter alia: 1. confirmed that Mr Onakoya is the tutor of the first plaintiff; 2. noted that it is necessary pending any further order of the Court that the suit be conducted by a legal practitioner (this is pursuant to r 7.14(2) UCPR); 3. stood the proceedings over for directions before the Common Law Registrar to facilitate Mr Onakoya identifying a suitable practitioner to act on behalf of the first plaintiff; and 4. extended the time for compliance with orders 5, 6 and 7 made by Adamson J on 20 September 2022 to 28 February 2023, and order 8 until 28 February 2023 or until further order.
3. The plaintiffs' motion now under consideration is said to be filed pursuant to order 7 of Adamson J's orders, as extended by Garling J. That matter first came before me (as duty judge) on 14 April 2023. Whilst order 8 of Adamson J's orders, extended by Garling J, is in self-executing terms, Mr Kettle of counsel appearing for the defendant took the view that the plaintiffs had satisfied the condition, the self-execution had not crystallised and the proceedings were not dismissed (14 April 2023, 3.43 - .47T).
4. I raised a preliminary concern that was initially raised before Garling J, being that the claim included allegations of defamation propounded by the parents. I took the view any such claim should be separately pleaded and prosecuted. I was also unable to assess the plaintiffs' attempts to obtain legal assistance from their materials. In this regard the second plaintiff relied upon his affidavit affirmed 9 March 2023. He deposed that "[he is] competent to handle the matter" (at [4]). He also recites the following about his referral for assistance by the Court on 16 September 2022: 1. On 21 September 2022, he completed the NSW Bar Association Legal Assistance Referral Scheme application after receipt of a link forwarded by a Registrar. 2. On 27 September 2022, he was advised by the NSW Bar Association that his application for assistance was unsuccessful but further attempts would be made (Annexure A). 3. On 4 October 2022, he wrote a letter to the Registrar of this Court for pro bono assistance (Annexure B). That was also unsuccessful. On 10 October 2022, he was advised that further attempts had been unsuccessful and the referral was closed (Annexure C). 4. In addition, the plaintiffs rely on a series of email communications by the second plaintiff to a number of law firms. The emails were heavily redacted to preserve any legal professional privilege, leaving scant detail about the inquiries; generally the time of the email and the name of the law firm contacted.
5. In light of this evidence, the plaintiff submitted that there is a common law right to self-representation and that the interests of justice were in favour of the proceedings continuing without a legal practitioner. On the material, I was not satisfied that reasonable attempts had been made to access legal assistance, I also made a preliminary observation that I was not satisfied that Mr Onakoya had enough knowledge about what was to be done to properly represent his daughter (14 April 2023, 17.29T). On that occasion, I adjourned to enable the second plaintiff another opportunity to demonstrate his attempts to obtain legal assistance for the first plaintiff and also to make contract with the NSW Law Society for referral of lawyers practising in medical negligence, for his daughter.
6. At the conclusion of the hearing on 14 April 2023, I made further directions for further preparation of the plaintiffs' motion.
7. On 14 May 2023, the matter returned before me for a directions hearing. Mr Onakoya provided unredacted copies of his emails seeking legal assistance to my chambers in accordance with my previous direction. Mr Onakoya said that he received a list of suitable solicitors from the NSW Law Society. I directed that the second plaintiff prepare a chronology detailing the attempts to obtain legal assistance for his daughter, including the firm, date of contact and the outcome. An order was also made for the plaintiffs to prepare and serve two statements of claim proposed to be relied upon, separately pleading the medical negligence claim and the parents' defamation claim.
8. On 5 July 2023, the matter was again before me for directions. The plaintiffs generally complied with my orders by separating the first plaintiff's negligence claim from the parents' defamation claim. Two proposed statements of claim were propounded styled Exhibit 1 and Exhibit 2 respectively. The defendant opposed the plaintiffs' repleaded claims (5 July 2023, 7.24 - .28T).

Hearing of the motion

1. On 8 August 2023, the motion was before me for hearing.
2. There are three primary issues for determination: 1. Whether an order should be made permitting Mr Onakoya to carry on his daughter's proceedings without a solicitor? 2. Whether leave should be granted to permit the first plaintiff to file the proposed amended statement of claim? That is, the statement of claim involving the professional negligence allegation (separated from the defamation claim). 3. Further to (b), whether the parents are appropriate plaintiffs in the professional negligence claim?

Plaintiffs' submissions

1. Mr Onakoya referred to the general right for a party to be self-represented (8 August 2023, 14.15T ff). He submitted that the defendant made a decision to have legal representation and correspondingly, the plaintiffs have a right to choose not to have legal representation. His submission did not explain how this right overcomes r 7.14(2) UCPR. In relation to himself and his wife being party to the first plaintiff's negligence claim, he submitted that no order was made for their removal as parties to that claim (15T). He continued that the defendant owed himself and his wife a duty of care which was breached and resulted in damage. This being the third plaintiff's loss of income by the necessity to care for their daughter.
2. I specifically drew to Mr Onakoya's attention Garling J's orders and r 7.14(2) UCPR, which he read. Mr Onakoya's response only illustrated his misapprehension. He explained: "[m]y understanding of 'tutor' is someone that have the legal right to represent incapacitated person [sic]" (17.13T). I explained to Mr Onakoya that the tutor stands in the shoes of the litigant, here his daughter, not in the shoes of the legal representative. Mr Onakoya subsequently submitted that he had made substantial efforts to obtain legal assistance for his daughter and on this basis the Court should make an order permitting the first plaintiff's claim to continue unrepresented through him as her tutor. He submitted he was in the best position to represent his daughter and that the matter not proceeding due to the inability to obtain legal assistance would be unfair (18T). The essence of his submissions seems to be that the delay to his daughter's proceedings, due to the inability to obtain legal representation for her, outweighs the protective requirement of r 7.14(2) UCPR. Mr Onakoya also indicated that he intended to file a further expert report, given Adamson J's ruling that his reports were deficient, but did not state when this could be done (23-24T).

Defendant's submissions

1. Mr Kettle first dealt with the issue as to legal representation. He confirmed the defendant's view that Garling J had not made an order dispensing with r 7.14(2) UCPR. Mr Kettle cited the Civil Procedure Handbook, for the proposition that it is in the defendant's interest to ensure that a minor has a properly appointed tutor so that the minor will be bound by the result of the proceedings (24T).
2. In relation to the plaintiff's chronology of attempts to obtain legal assistance for his daughter (Exhibit B), the defendant's submission was that those attempts were deficient. Particularly, that there did not appear to be any follow up or exchange of communications when a positive response was obtained. The submission continued that communications only by email was inadequate.
3. Mr Kettle submitted that while the proposed amended pleading (Exhibit 1 document) had incremental improvement, it does not arise any higher and he pointed to a few specific deficiencies. For example, the extent of the relief sought and the mother's third party claim for damages. He continued that the matter had made slow progress despite being on foot for almost a year and that continuation of the proceedings would be very prejudicial to the first plaintiff but also the defendant if the status quo were unchanged. His ultimate submission being that leave to file the new pleading should be refused and the proceedings dismissed (28.47T).

Consideration

1. I should point out at the outset that when the matter was before me for further hearing on 8 August 2023, Ms C Roberts of Counsel appeared for the defendant in relation to the defamation claim (Exhibit 2 document). She made a number of oral submissions in relation to its deficiencies. I decided that for the purpose of affording the parents procedural fairness that the question of whether they should be permitted to proceed on the basis of the Exhibit 2 document should be decided separately from the questions the subject of this judgment in relation to the first plaintiff's medical negligence claim. I made further directions for the management of that issue. I record that Ms Roberts lodged her written submissions detailing the matters she had raised orally on 22 August 2023. I will make no further reference to the defamation action in this judgment.
2. While I was somewhat inclined to proceed on the basis that the Exhibit 1 document was perhaps the best that could be expected of a pleading given the absence of legal representation, I have been persuaded by Mr Kettle's argument that there remain significant irregularities with the document.
3. The Exhibit 1 document pleads that the first plaintiff was born prematurely on 9 February 2019 and was transferred to the Liverpool Neonatal Intensive Care Unit for treatment. Paragraphs 6 to 13 of the Exhibit 1 detail the Neonatal care received by the first plaintiff with a view to demonstrating the absence of any suggestion of cerebral injury or deficiency during her first two months of independent life. By paragraph 13 it is averred that during the first plaintiff's further admission to Bankstown Hospital from 6 April 2019, an observation was made of a sudden change in swallow function and reduced airways protection during feeding and she was transferred back to the Childrens Hospital at Westmead.
4. The plaintiff's case in many respects is very straightforward. By paragraph 14, it is alleged that the first plaintiff's head was negligently thrown back and forth during a medical examination by the defendant's emergency department staff. The allegation is that she was shaken in an extremely fast or forceful manner. While the paragraph impermissibly mingles evidence with material facts by averring that the second plaintiff witnessed this occurrence, the pleading of the event is clear. Paragraphs 15 and 16 also impermissibly mingle evidence with material facts, but from them it can be understood that the allegation is that symptoms of Shaken Baby Syndrome of seizures and eyerolling were observed by medical and paramedical staff of the defendant on 16 April 2019.
5. Paragraph 17 contains a somewhat elaborate pleading of the duty of care owed by the defendant to each of the first, second and third plaintiffs. Whereas aspects of its particularisation may be contestable, it should be borne in mind that there can be no serious question that a duty of care was in fact owed and I do not understand the defendant to contest this.
6. Paragraph 18 sets out particulars of breach. Once again evidence of what the second plaintiff says he observed is introduced into the pleading. Evidence of what others observed on behalf of the hospital at paragraphs 19, 20, 21 and 24 include claims of the creation of deliberately false records which do not go beyond mere assertion and at best can be no more than questionable in a statement of a claim for damages for personal injury founded on negligence. I would not allow those matters to stand.
7. Paragraphs 25 to 31 aver that the plaintiff was discharged home in the care of her parents on 19 April 2019 without proper advice or instruction as to the Shaken Baby Syndrome which it is alleged had been present since the 16th, and which continued to develop until the first plaintiff was readmitted on 12 May 2019. In my view, while far from perfect, those averments are at least sufficient and should be permitted to stand. Paragraphs 32 to 34 aver facts that occurred after the first plaintiff's discharge, in my view, in a largely unobjectionable manner.
8. By paragraph 35, it is alleged that the hospital staff failed to detect the first plaintiff's condition when she was brought in by ambulance to the emergency department on 12 May 2019 and a complaint is made that no clinical investigation of the cause of the apparent seizures was undertaken until 29 May 2019. This is unobjectionable.
9. Paragraphs 36 to 40, to my mind plead irrelevant facts and I will not allow them to stand or be maintained. Paragraph 44 pleads scandalous irrelevant material and I would not permit it to be maintained. Paragraphs 46 to 48 plead the results of an investigation into the first plaintiff's condition said to have been undertaken by the Department of Communities and Justice. In my opinion, that matter is entirely irrelevant to any cause of action in medical negligence on behalf of the first plaintiff and I would not permit this matter to be propounded.
10. Paragraphs 49 to 56 appear under the heading "Bankstown Hospital's Confirmation of False Records". I am of the view that those matters are irrelevant and immaterial to the first plaintiff's claim for damages for personal injury or any claim for damages that may be articulated on behalf of the second and third plaintiff's and I will not permit them to stand.
11. Paragraphs 57 to 59 under the heading "Standard of Care" seem to me to plead material facts or matters of mixed fact and law relevant to the question of negligence and ought to be permitted to stand.
12. With the exception of paragraph 69, the matters pleaded under the heading "Causation" in paragraph 60 to 71 are advanced with a good deal more elaboration than one would normally require in a statement of claim. While this part of the pleading descends into the territory of evidence or argument, it is otherwise unobjectionable and I would permit them to stand.
13. Once again, the material under the heading "Loss and Damage" from paragraphs 72 to 76 are intelligible largely as particulars of damage to which the defendant need not plead. However, I would except from this paragraphs 74 and 77 which relate to losses suffered by the second and third plaintiffs, in particular, the circumstance that the third plaintiff gave up work to care for her daughter full time due to her injuries. I am not satisfied that the third plaintiff can make an independent claim for damages for that matter as opposed to it standing as particulars of the provision of voluntary care and assistance, which may sound in damages in the first plaintiff's case.
14. So far as paragraph 77 rolls up a claim for tremendous stress and suffering on behalf of all of the named plaintiffs, I observe that there is no pleading of any case whatsoever on behalf of the second and third defendants for psychiatric injury, let alone one which is capable of complying with the provisions of Part 3 of the Civil Liability Act 2002 (NSW) and I would not permit paragraph 77.
15. Paragraph 78 refers to the requirements of r 31.36 UCPR that an expert's report including an opinion supporting the claim must be filed with the statement of claim. Adamson J pointed out that this had not been done. The second plaintiff propounds a report from Dr Susan Marks of 11 June 2019 and the report of the Child Safety Review Unit of the Department of Communities and Justice. Adamson J held that these reports were not sufficient to comply with the rule. The second plaintiff has not remedied this defect. Before me he insisted it could be done quickly, but it has not yet been done. This is a matter to which I will return.
16. Returning to the relief claimed, the declarations sought in paragraphs 1 to 4 are at best unnecessary. They should not be permitted to be claimed. Quite apart from the impermissible form in which they are cast, they are of no practical utility whatsoever. This is a claim for damages for personal injury on behalf of the first plaintiff and the claimed declarations add nothing and should be struck out. Paragraphs 5 and 6 are claims for damages. But the form of paragraphs 5 and 6 offend r 14.13 UCPR by claiming amounts for what are essentially unliquidated damages. The amounts should be struck out. Likewise, in respect of the matters under the heading "Particulars of Special Damages", paragraph (f) relating to the plaintiffs' emotional and psychological pain suffering should be struck out so far as it concerns the second and third plaintiffs as there is no pleading supporting that matter. Were there such a pleading in any event, the nomination of a specific sum would also offend r. 14.13. Manifestly what is claimed is not special damages at all in that regard, but unliquidated general damages.
17. I turn then to the question whether the second plaintiff should be permitted to carry on the proceedings without a solicitor. Rule 7.14 UCPR is in the following terms: "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." The second plaintiff has been "confirmed" as the first plaintiff's tutor by the orders of Garling J. However, his Honour, like Adamson J before him, has made it quite clear that the second plaintiff may not carry on the proceedings on behalf of the first plaintiff "except by a solicitor" and no order has been made to the contrary.
18. To some extent I was concerned that insistence upon compliance with this rule would be oppressive to the first plaintiff if all reasonable efforts had been taken by the second plaintiff to find legal representation, but unsuccessfully. However, it seems to me that the central question is concerned with the interests of the person under legal incapacity, here the first plaintiff. This matter cannot be adjudged solely by pragmatism. While on the face of it (Exhibit B), the second plaintiff has made an approach to a large number of different lawyers, his attempts have been largely sporadic and somewhat indiscriminate. I am aware that he has prepared a letter of instruction setting out fully his conception of his daughter's case which he has supplied to the lawyers approached. I am not so sure that was a helpful step. It is quite clear that he has approached many lawyers who would not purport to act in the personal injuries field, let alone in medical negligence which is somewhat specialised. Specifically, at the urging of Garling J, repeated by me, he seems to have approached a number of lawyers whose names were provided to him by the Law Society of NSW, but he has not, it seems to me, followed any of these firms up in the face of no response. His modus operandi in general terms, appears to be inquiring of law firms by email late at night. I interpolate, I accept that with full time work and a disabled child he doubtless has limited time. On the other hand, this approach does not seem to be one that is calculated to obtain a positive response. As I have said, none of the firms whose names were provided by the Law Society has been followed up after he made an initial cold query, largely on Sunday 19 March 2023, a time when a firm's email is likely to be unattended. I am left with a feeling that the second plaintiff has rather "gone through the motions". I am not satisfied that despite the number of emails he has sent that he has made all reasonable enquiries. I remain conscious of the consideration that attempts to obtain pro bono assistance under r. 7.38 UCPR have been unsuccessful. The Court cannot conscript lawyers to assist. Even so, I am not satisfied that the second plaintiff has made well-directed attempts to obtain representation.
19. Had I been satisfied that the second plaintiff had made all reasonable attempts to find legal representation for his daughter, I would still have had real misgivings about whether it is in her best interests for him to be permitted to carry on, and present, the proceedings on her behalf. While almost universally a self-represented plaintiff will also be the central witness in his or her case upon which his or her prospects of success depend, I have real concerns about whether that is appropriate when acting on behalf of another. What I mean by that is that it is clear that the second plaintiff himself is the central liability lay witness. Virtually the whole of the first plaintiff's case will stand or fall upon the accuracy and reliability of his account. That will make it extremely difficult for him to make decisions in relation to the conduct of the case in a dispassionate, mature and sober manner, despite his best intentions in that regard. The second plaintiff has sought to assure me that he can handle the case. I am not so assured.
20. It is also apparent to me that the second plaintiff has shown an insufficient understanding of the legal and factual issues involved in the case. This is made pellucidly clear by his tendency to propound irrelevant and immaterial matters which he regards as supporting the first plaintiff's case. He also seems to have garnered an insufficient understanding of the entitlement or otherwise of himself and his wife to claim damages in respect of the first plaintiff's injury. Finally, he has shown no real attempt to familiarise himself with the applicable rules. His failure to comply with r.31.36 UCPR despite judicial reminders is an important case in point.
21. While the first plaintiff's case should not be stultified, I am of the view that the wisdom of the rules is manifest when one considers the difficulty, the second plaintiff has experienced in attempting to comply with the orders made by Justice Adamson 12 months ago. Despite his best endeavours these difficulties will only continue if he is permitted to conduct his daughter's case without a solicitor.
22. Finally, as there is no intelligible pleading of any maintainable cause of action on behalf of the second and third plaintiffs in the Exhibit 1 document, I propose to direct that they be removed as parties from these proceedings under r. 6.29 UCPR.
23. I think it pragmatic to permit the second plaintiff to file the proposed statement of claim, the Exhibit 1 document, but with the necessary changes to accord with my reasons so that there is a document pleading a case on the court file even if it will need to be amended once representation is obtained. I am of the view this level of pragmatism is necessary to preserve the first plaintiff's rights, such as they may be. However, I propose to stay the proceedings until r. 7.14 and 31.36 are complied with.
24. My orders are: 1. Under r 6.29 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") direct that Matthew Onakoya, the second plaintiff and Olamide Onakoya, the third plaintiff be removed as parties from the first plaintiff's claim for personal injury damages against the defendant. 2. Grant leave to the first plaintiff to file the document dated 22 June 2023 and styled "Proposed Statement of Claim, Exhibit 1" as an amended statement of claim, subject to its further amendment to conform with these reasons. 3. Under s 67 Civil Procedure Act 2005 (NSW), the first plaintiff's claim for personal injury damages is stayed until r 7.14 and r 31.36 UCPR are complied with. 4. Liberty to apply in respect of order 3 when evidence of compliance with r 7.14 and r 31.36 is available.

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