South v Northern Sydney Area Health Service & Anor

• 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List

20334/96 Karra Joy South by her tutor Joy Irene South v Northern Sydney Area Health Service and Dr R G Rushworth

Judgment 1 His Honour: In this matter, two motions were brought before the Court, one by the Protective Commissioner of New South Wales and one by the second defendant. By agreement of the parties, the Court began by hearing the motion of the Protective Commissioner, who sought the removal of the plaintiff's tutor, with no liability in respect of costs, and an order under Part 1 rule 12 of the Rules dispensing with compliance with the requirement imposed by Part 63 rule 2 that the plaintiff, as a disable person in respect of whom an order was made on 5 September 2002 declaring her a person "incapable of managing her affairs" and committing the management of her estate to the Protective Commissioner, "may not, except by [her] next friend… carry on any proceedings for relief in the Court". A similar dispensation is sought in respect of rule 5(2). 2 The motion is brought in an action for medical negligence in which the plaintiff alleges she was admitted to the Royal North Shore Hospital under the care of the second defendant, now retired but then a neurosurgeon, for a head injury. It is claimed that, negligently, the second defendant failed to detect a subdural haemorrhage caused by the plaintiff, then a baby aged 22 months, having fallen off a toilet, and discharged the plaintiff after a few days as being apparently recovered. Some week or two later, the plaintiff was readmitted with a history of sudden deterioration after being well during the time since the previous admission. The plaintiff was then found to have a subdural haemorrhage. In these circumstances, the medical evidence foreshadowed by the defendants, by the service of reports, suggests that, far from being a case of negligent failure to detect a particular condition, this is a case where two false histories were supplied, the probable explanation being that the plaintiff had been at least twice the victim of a form of child abuse that not uncommonly causes serious brain damage with symptoms known as "shaken baby syndrome". 3 What is put forward in support of the motion is that the tutor, who is the plaintiff's adoptive mother, has been placed in a position of conflict of interest, since the defendants' case could readily lead to inferences implicating her. Part 63 rule 4(3), not surprisingly, precludes a person with an interest adverse to the interest of a disable person being his tutor. In this situation, the Protective Commissioner says Part 63 rule 8 authorizes him, as "any other person", to move as he has done. Rule 8(1) provides: 8 Removal (1) The Court may, on motion by a party to proceedings or by any other person or of its own motion: (a) remove a tutor, and (b) stay the proceedings until appointment of a tutor in place of the tutor removed. 4 The difficulties raised are as to the terms and consequences of any removal of the tutor. In the normal course, she would remain liable for costs which might be ordered in the future against her in respect of the period up to her removal. And she would need to be replaced by a tutor who would become liable to an order for costs. That the Protective Commissioner, if he were appointed tutor, would come under such a liability seems to have been accepted by Powell J in Re an Incapable Person D [1983] 2 NSWLR 590 at 593. The Protective Commissioner, in the present case, has declined to accept the position of tutor for this reason. I have been referred to s24(2)(o) of the Protected Estates Act in support of the proposition that the Protective Commissioner could issue instructions for the conduct of the action, without any tutor being appointed, if I were to dispense with compliance with the rules that would stand in the way. 5 Only one authority was cited to justify such a course being taken: Crockett v Roberts [2000] TASSC 148, a decision of Underwood J. But that decision turned on the terms of Tasmanian legislation which, in the judge's view, operated to "make the appointment of a litigation guardian [the Tasmanian equivalent of a tutor] otiose". It cannot properly be said that, in New South Wales, s24(2)(o) of the Protected Estates Act has any similar effect. On the contrary, Part 63 rule 5 (read with the definition of "curator" in Part 1 rule 8) expressly contemplates that the Protective Commissioner may be (and generally will be) the tutor of a person in the position of the plaintiff in accordance with the rules in Part 63. 6 Even if the statutory provisions in Tasmania and New South Wales were treated as equivalent, it is admitted the order sought would call for an exercise of discretion in the circumstances of this case, which are unique to it. Here, the evidence reveals that there exists a body of medical evidence the exploration of which would raise issues going to the whole basis of the action and, as well, to the continued health of the plaintiff's relationship with her mother. These are matters she might be expected, if she were of full mental competence, to consider with anxiety before electing to proceed with the action. But the motion asks the Court to dispense with the necessity for anyone to consider those questions whose own assets would be at risk. While asking the Court to make such an order, the Protective Commissioner does not even provide an affidavit showing that he has weighed the issues and concluded the pursuit of the claim would be for the benefit of the disable person having regard to the weight of the evidence in his possession, and after consideration of the possible effects on her ties with her mother. What he swears is simply that "there is no appropriate next friend", and that he is "prepared to assist" and "to manage the plaintiff's litigation and to provide instructions", but "is not prepared to be the next friend nor to give any undertakings as to costs". 7 If one turns to the defendants' position, the Rules of Court offer them the assurance that the next friend is a person "who may be responsible to the Court for the propriety of the suit in its institution and progress": Daniell's Chancery Practice (8th Ed) at 100-101, cited in Crockett. Indeed, Underwood J goes on to say (at [14]): Thus, it seems to me, that primarily, a next friend is appointed for the benefit of the defendant. A successful defendant is entitled to look to the next friend to satisfy an order for costs which it would not be able to enforce against an infant or person otherwise under disability.

When the person with the power to give, and giving, the instructions in litigation bears no such responsibility for its costs, it seems to me the position of the other party is likely to be inferior to that which the Rules contemplate. 8 So far as concerns the application to excuse the existing tutor from liability, it should be pointed out that she is not an applicant in the motion. Nor was anything put forward to justify depriving the defendants of the protection conferred on them by the Rules. 9 In my opinion, the tutor should be removed, but on condition that she remains liable, in respect of everything done and all costs incurred in the proceeding up to the date of her removal, to such orders as the Court may make. The consequential order contemplated by rule 8(1)(b) should be made, staying the proceedings until appointment of a tutor in place of the tutor removed, save that the motion for dismissal, or any similar motion, may be brought on for hearing not earlier than next November or after the appointment of a tutor. I make these orders; I refuse to dispense with compliance with the Rules; and I order the Protective Commissioner to pay the costs of the motion. -o0o-

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