Richards v Rahilly

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20324/01 - Rhiannon Lorraine Richards (by her Tutor Judith Anne Ennis) & 2 Ors v Dr Patrick Rahilly & Anor

JUDGMENT 1 HIS HONOUR: This is an application brought by notice of motion by the first defendant for an order that there be separate trials on the questions of liability and causation before and separate from a trial involving the question of quantum. While the notice of motion filed by the first defendant seeks other orders, the only order now sought is the one I have just identified. 2 The substantive matters before the court involve three actions. The first of the actions involves a claim made by a legally disabled person by her tutor for medical negligence. The two other actions are brought by the parents of the legally disabled person for nervous shock. The question of liability in these two latter actions will of course depend on the resolution of that question in the first action. 3 The application is opposed by the plaintiffs. The second defendant in the action, while consenting to any order which the court might make on the motion before it, took no active part in the application. 4 The first plaintiff who is now three years and eleven months of age suffers from severe global developmental retardation combined with a severe seizure disorder. The consequence of this malady is that she has significant cognitive, speech and language disabilities, problems with motor coordination, mild vision impairment and a range of related disabilities. 5 It is alleged against the first defendant who treated her between the 21 September and 3 November 1999 that he failed to take a proper history, failed to act on the clinical history he in fact failed to determine the cause of the symptoms exhibited by the first plaintiff, failed to arrange for an EEG examination and failed to respond to the complaints of her parents that he manage her deteriorating condition. 6 The first plaintiff was admitted to the second defendant's hospital on the 3 November 1999. Following her admission to the hospital the first plaintiff was diagnosed as suffering from infantile spasms and was treated with a range of anti-convulsant medications. From mid December 1999 a paediatrician, Professor Neil Buchanan became involved in her care. In February or March 2000 he introduced a new medication to her treatment, a drug known as Vigabatrin. This latter drug as I understand the affidavit material before me produced some improvement in the first plaintiff's condition. As I understand the pleadings and the affidavit material before me the allegation against the hospital is that it was in breach of it's duty of care in that it persisted with inappropriate medical treatment following her admission until the Vigabatrin was administered to her. The nub of the allegations made against the hospital is that it failed to use Vigabatrin as first line treatment for the first plaintiff's infantile spasms. 7 The claim brought by the first defendant's parents raises an allegation that they suffered nervous shock as a result of observing and learning of the first plaintiff's brain damage. 8 The court is empowered to make orders for the decision of any question arising in an action separately from any other question which may arise whether it be before or after any trial or further trial in the proceedings. That power arises from Pt31 r2 of The Supreme Court Rules made pursuant to the Supreme Court Act 1970. Apart from Pt31 r2 pursuant to s85(2) of the Act itself the court has a power to order the separate determination of any question of fact. 9 This power involves a departure from the ordinary position at common law that all issues in an action should be tried together. However both s85(2) of the Act and Pt31 r2 of the rules confer upon the court a wide discretion to make an order for separate trials in appropriate cases. See Buckley v Bennell Design and Construction Pty (1978) 140 CLR 1 at 7 per Barwick CJ. 10 The circumstances in which the court will make such an order have been the subject of a number of decisions of the court since the act and rules came into being. In Love v The Mirror Newspapers (1982) NSWLR 112 at 126 Hunt J felt that the burden of establishing that a separate trial is appropriate may be discharged by demonstrating in a case where the separate decision of the question will dispose of the whole of the claim against a defendant that a separate trial is "likely to save inconvenience and expense". The High Court in Tepko Pty Ltd v Waterboard (2001) 178 ALR 64 introduced a cautionary note to the principle stated by Hunt J in Love v The Mirror Newspapers. There, Kirby and Callinan JJ said at 675 ... - "common experience demonstrates that savings of time and expense are often elusive particularly when the parties have, as here, the necessity of making full preparation and the factual matters relevant to one issue are relevant to others and they all overlap." Kirby J himself when Kirby P made similar observations in CBS Productions v O'Neil (1985) 1 NSWLR 601 at 606. It may be gleaned from these decisions, that in determining whether to order separate trials of liability and quantum in a common law action, the court should look carefully at the degree to which evidence relating to the questions of liability and quantum are intermingled. In a case where the evidence in relation to these two matters is quite discrete in relation to either, then, assuming that a separate trial will give rise to essential savings in time and expense, the easier it will be for the court to come to a decision to order separate trials of those issues. On the other hand, the more the evidence relating to liability and quantum is intermingled, the more difficult it will be for a party to persuade the court that the court should make such an order. 11 Essentially the arguments advanced by the parties in the present matter reflect the law as I have just stated. On behalf of the first defendant it was submitted that the questions of liability and quantum are quite discrete whereas on behalf of the plaintiffs it was put that particularly in the case of the first plaintiff the evidence relating to liability involved such an overlapping of opinion in relation to quantum that this is not an appropriate case for the court to depart from the common law position that all issues should be dealt with at the one trial. It was also submitted on behalf of the plaintiff that the evidence relating to liability involved such an overlapping of opinion in relation to quantum that this is not an appropriate case for the court to depart from the common law position that all issues should be dealt with at the one trial. It was also submitted on behalf of the plaintiff that in fact the evidence relating to quantum would not involve any substantial elongation of the trial were that issue to be dealt with at the same time as liability. 12 It was also submitted on behalf of the plaintiff that in determining this matter I should endeavour to set out a guideline for parties involved in medical negligence actions as to the type of cases where it would be appropriate for an order for separate trials to be made and it follows to identify the type of cases where it would not be appropriate to make such an order. 13 As a matter of convenience I will deal with this latter request at the outset. In the course of his submission Mr Hirsch by way of example cited a number of examples of cases where the court would properly make an order for separate trials. Without dealing with his submission in detail I agree with the submission he made that the type of cases he outlined should in fact be the subject for orders for separate trials. In the cases he instanced the evidence relating to liability was quite discrete from the evidence which would be induced in relation to the question of quantum. They were cases where a party would be able to demonstrate that a separate determination would be likely to save inconvenience and expense and decisions where the separate decision would dispose of the whole claim if the defendants were successful. However between the type of case referred to by Mr Hirsch and the type of case where the evidence relating to the issues of liability and quantum are so intermingled that a court would not exercise its discretion to order a separate trial lie a number of cases where, while there is an intermingling of the evidence on both issues that intermingling is not so significant as to overcome the factor that an order for separate trials will save considerable inconvenience and expense. In my view it is not possible to formulate a guideline which will state with precision the type of case between the two extremes I have mentioned above which will lead the court to make or not make the type of order sought here. In other words I do not believe it is appropriate for this court to give a guideline judgment of the type in question by Mr Hirsch. 14 As I have already mentioned Mr Hirsch also submitted that in fact an order for separate trials would not result in a real saving of inconvenience and expense to the court and the parties. He put it that the calculation of damages in the case would not involve a great amount of time, it being more a matter of mathematical calculation than a contest on evidence. No doubt there are cases where the calculation of damages involves an exercise of the sort adverted to by Mr Hirsch. However this is not always the case. For instance, recently a case raising very similar issues of quantum to those involved here, namely Simpson v Diamond, involved the court spending weeks hearing the evidence led on behalf of the parties. A reading of the reports tendered on behalf of both parties here (and I have read all reports in full) indicates to me that there is a real risk that this case could occupy a very substantial time in dealing with the evidence led by the parties in relation to quantum. The evidence tendered by both parties clearly indicates that the issue of liability is discrete. As I shall mention later in their reasons no doubt medical experts whose evidence will be lead on this issue will depose on some issues relating to quantum. 15 Furthermore the parents claim for nervous shock as I have already mentioned is entirely dependant on the result in the first plaintiff's claim. When this factor is added to the matter that I have just referred to in my view the defendant has comfortably satisfied the burden of persuading the court that separate trials will lead (should the defendant be successful) to considerable savings in terms of inconvenience and expense. 16 However of course the matter does not end there. This is a case where I am of the view that the court should bear firmly in mind the cautionary note (as I have so described) expressed by Kirby and Cohen JJ in Tepco's case. As I noted above, I have no doubt the evidence of Professor Buchanan, the plaintiff's treating paediatrician will involve matters going to both liability and quantum. Indeed the same comment applies to the evidence which the plaintiff will lead from Dr Appleton, an English consultant neurologist who the first plaintiff has qualified. Indeed I am of the view that there is substance in Mr Hirsch's submission that because the future economic loss of the plaintiff must of necessity contain matters of substantial uncertainty that considerations of the type discussed by the High Court in Mallick v J C Hutton Pty Ltd (1990) 169 CLR 638 as considered and applied in The Commonwealth v Amond Aviation Pty Ltd (1991) 66 ALJR 123 particularly per Deane J at 146, 147 and Toohey J at 156 will be involved here. 17 The reports of the experts in this case (particularly those adduced by the plaintiff) do involve some overlapping between the matters to be considered in relation to both liability and quantum. I should say that this is the case in most common law actions involving questions of personal injury. However I am of the view that the degree of overlapping in this case is not of such an order that would cause the court to conclude that the defendant has failed to discharge its burden in establishing that the court ought to make the order sought. As I have already indicated in coming to this conclusion I have born firmly in mind the stricture adverted to by Kirby and Callaghan J.J. in Tepco Pty Ltd v Waterboard. 18 In short I have concluded that the probable saving of expense and inconvenience in ordering separate trials in this matter is of such a degree that it is appropriate for the court to exercise its discretion under Pt31 r2 of The Supreme Court Rules and to order separate trials of the issues of liability and quantum. 19 Accordingly I make the following orders

1. Pursuant to Pt31 r2 of The Supreme Court Rules, there be a separate trial on the questions of (1) liability and (2) causation before any trial on the question of damages in the proceedings.
2. The plaintiff pay the costs of the first defendant's motion as agreed or assessed.

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