Sripathi v Central Coast Local Health District

Relevant principles

1. Part 28, r 28.2 of the UCPR provides: 28.2 Order for decision (cf SCR Part 31, rule 2) The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
2. Reference was made by the first defendant to the principles stated in the judgment of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 ("Idoport") at [7]: "[7] Without examining specific cases in relation to the power conferred on the Court in Part 31, Rule 2, I proceed on the basis of the following principles. (1) The power of the Court to order the separate determination of an issue is a discretionary power which must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 699 at 670 per Young CJ and Jenkinson J. (2) In exercising the power under Part 31, Rule 2, the Court is now enjoined to give effect to the overriding purpose of the Supreme Court Rules; namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings and cannot be stated in a more confined way: Part 1, Rule 3 (1), (2) Supreme Court Rules. (3) The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 per Giles CJ in Comm D, Hadid v Australis Media Ltd (unreported, Supreme Court of NSW, 29 March 1996 per Rolfe J). Accordingly, it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur. (4) Without being exhaustive, the separate determination of an issue may prove to be an appropriate procedure in at least the following sets of circumstances: (a) where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy: CBS Productions Pty Ltd v O'Neil [1985] 1 NSWLR 601 at 606 per Kirby P, Dunstan v Simmie & Co Pty Ltd (supra, at 671 per Young CJ and Jenkinson J); (b) where the resolution of that separate issue carries with it a strong prospect that the parties will thereafter be able to resolve their dispute themselves and thus avoid further litigation: Tallglen v Pay TV Holdings (supra, at 141 - 142 per Giles CJ in Comm D); (c) where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses: CBS Productions Pty Ltd v O'Neil (supra, at 606 per Kirby P), Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Rajski v Carson (1988) 15 NSWLR 84 at 88 per Kirby P and Hope JA. (5) Conversely, the separate determination of an issue will rarely be an appropriate procedure where: (a) there are intertwined issues of fact or law between the separated question and the other questions such that the determination of the separate question will not have any substantial effect upon the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation: Law Society of NSW v Bruce (unreported, Supreme Court of NSW, 23 April 1996, per Rolfe J), Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J). (b) where there is a commonality of witnesses and issues of credit as between the separate issue and other issues in the case which will or may necessitate a ruling on the credit of one or more of the common witness, thus possibly precluding that same judicial officer from again dealing with the matters going to the credit of the common witness in accordance with the decision of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441: Story of Sydney Pty Ltd v Ling (unreported, Supreme Court of NSW 15 November 1994, per Rolfe J), Century Medical v THLD [2000] NSWSC 5; (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J). (c) there is a possibility that the resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of the proceedings: Story of Sydney Pty Ltd v Ling (supra), Century Medical v THLD (supra). (6) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd (supra, at 142 per Giles CJ in Comm D), Parramatta Stadium Trust v Civil and Civic Pty Ltd (supra), Century Medical v THLD (supra).The starting point in determining whether the Court should order a separate trial of certain questions is the proposition that it is ordinarily appropriate that all questions or issues in the proceedings are disposed of at the one time. Accordingly, the parties seek any order that there be a determination of separate questions, bears the onus.
3. Hallen AsJ revisited these principles in 2010 in Southwell v Bennett [2010] NSWSC 1372 ("Southwell"). It was common ground that the principles stated by Hallen AsJ in Southwell at [15] properly stated the application and interpretation of r 28.2 as follows: "[15] I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be: (a) The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law. (b) The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51]. (c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question. (d) Whether such an order should be made is a matter for the court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7]. (e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]-[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ. (f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. (g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be "just and convenient" for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049. (h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J. (i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168]. (j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported). (k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037. (l) Often, a separate question is heard on the basis of: (i) agreed statements of fact; (ii) a narrow point to be determined; and (iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with). (m) Factors that tend to support the making of an order, include that the separate determination of the question may: (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings; (ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at 607). (n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions. (o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions. (p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J. (q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5. (r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred. (s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341.

The Plaintiffs Submissions

1. The plaintiff submitted there should be a separate hearing on liability on two bases, namely: 1. The quantum of any damages to which the plaintiff may be entitled is not able to be determined for many years ("the first basis"); 2. The principal liability witness upon whom the plaintiff relies by then would be unavailable to give evidence in his case ("the second basis").
2. In the first case, the plaintiff referred to the affidavit of Gillian Potts sworn 10 October 2022 annexed to the report of Dr Ken MacLean, paediatric geneticist, dated 25 September 2022, where that medical expert stated, at p 38: "It is not possible or appropriate to predict long term needs, educational attainment, employment or vocational outcomes at this stage, beyond identifying the need for review and reappraisal."
3. In the second case, the plaintiff submitted that there is concern that the primary liability witness, Professor O'Connor, may not survive the time between now and the hearing. It was submitted that Professor O'Connor, who is now in his seventies, will, at the least, certainly be retired by the time of the hearing.
4. A further issue arose from the defendant's submissions in chief and in reply of the plaintiff regarding the overlapping of evidentiary issues of liability and issues of damages. The plaintiff submitted there is no overlapping of factual issues in this case between the issues of liability and the issues of damages: Binge-Grose by her Tutor Binge v State of New South Wales [2016] NSWSC 1228 (Harrison J (as his Honour then was) at [6]).
5. The plaintiff made the following additional submissions as to why the question of liability should be heard first and separately: 1. The applicable principles for the separate trial of liability and damages in cases involving catastrophic injury to young children where the outcome will not be known for many years are set out in Thomas v Oakley [2003] NSWSC 1033, which Justice Campbell recently described as being "frequently cited" on such issues: Sukhova v Sydney Trains [2021] NSWSC 603 (at [8]). 2. The old law in relation to the reluctance of Courts to order separate trials of liability and damages in cases other than children's cases must also be viewed in light of the observations made by Barr AJ in McLean by her tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400 where his Honour said, at [13]: "[13] More recently, no doubt in response to legislative changes the courts have been readier to separate issues. One reason for this change of approach, at least where plaintiffs are children, must have been the changes made in 2022 to the Limitation Act 1969. Whereas previously the time limited for the commencement of proceedings did not begin to run until the child became of age, the child is now deemed under s 50F(3) for the purposes of the commencement of the period to know what is known or ought to be known by a capable parent or guardian. One inevitable result of that change is that the court may expect to receive claims on behalf of children claiming to be suffering disabilities many years before damages can be assessed." 1. This is a case which will almost entirely depend on competing expert witnesses of medical background in relation to the management of the mother's pregnancy and the circumstances surrounding the delivery of the plaintiff. It is a case where the Court will be, in effect, relying upon medical experts to apply standards of the kind identified by s 50 of the Civil Liability Act 2002 (NSW). 2. The documentary evidence in the case of both the plaintiff and the defendants will be the medical records relating to the management of the pregnancy and the birth of the plaintiff. Both sides will rely upon the content of those records. 3. Both the plaintiff and defendants have put on extensive evidence on the issue of liability and hence, the case is ready for a trial on the issue of liability. Professor O'Connor is obviously available for that trial now. 4. The witnesses will be the mother of the plaintiff, the father of the plaintiff, Professor O'Connor and "perhaps some radiological evidence as to when the hypoxic brain injury occurred". 5. With the exception of Dr Ramanathan, none of the defendant's witnesses have seen the plaintiff since his birth and their evidence will be their expert medical opinion in relation to the standard of care in relation to the management of pregnancy and the birth of the plaintiff based on what they have read in the clinical notes and records. 6. The plaintiff does not know if the first defendant intends to call the registrar who failed to deliver the plaintiff or the staff specialist who did so after the plaintiff became hypoxic. 7. If Professor O'Connor is unavailable, the plaintiff will have to attempt to qualify another suitable qualified expert to look at the records going back to the birth of the plaintiff (in 2015) and put on very detailed and expensive expert evidence in relation to the standard of care shown at the relevant time. This would add significantly to the costs of the litigation, something which the authorities say should be avoided. 8. In Sripathi No 1, an order was made for an interim payment so that money would be available for the ongoing treatment needs of the plaintiff. As Harrison J (as his Honour then was) noted in that judgment, if an order for a separate hearing on liability is made and the plaintiff establishes liability against one or both defendant's, the plaintiff will have an opportunity to make an application under s 82(3)(b) of the Civil Procedure Act 2005 (NSW), which relevantly provides that "if … the plaintiff has obtained judgment against the defendant for damages to be assessed" applications may be made for payments. 9. It is in the interests of all parties that if liability is determined in favour of the plaintiff that such a procedure can be utilised. 10. It is in the interests of the plaintiff to give him a better quality of life and it is in the interests of the defendants to ensure that he receives the treatment he needs as he grows so as to minimise the amount of damages that will ultimately be awarded.

The First Defendant's Submissions

1. The first defendant maintained that there is an overlap of factual questions in this case between the questions of liability and the questions of damages, such that it is not an appropriate matter for a trial of liability only. The first defendant submitted that that overlap arises as follows: 1. The plaintiff's claim in respect of the antenatal management is, it is accepted, one involving a clear delineation between questions related to causation and damages. In other words, if the Court accepts the plaintiff's proposition that because of particular risk factors, a caesarean section should have been offered in advance of labour, and would have been taken up, then shoulder dystocia would not have developed, there would been no 18-minute period between delivery of the head and delivery of the body and there would have been no hypoxic ischaemic encephalopathy. 2. However, it is the plaintiff's case in respect of the management during labour and delivery where the potential overlap arises. Depending on what, if any, breach is made out with respect to the management during labour and delivery, the Court will need to consider what difference that would have made to the time at which delivery of the plaintiff's body would have been affected. 3. For instance, the Court may find that at some point during the allegedly prolonged second stage of labour, the consultant obstetrician should have been called in and if that had occurred, and appropriate techniques had been employed, the shoulder dystocia may have been overcome somewhat earlier. That may mean that instead of being 18 minutes between delivery of the head and the body, there was a somewhat shorter period. That then raises the issue of whether a shorter period of the head being on the perineum and a consequently shorter period of hypoxia, may have meant a lesser hypoxic ischaemic injury, with a knock-on effect in terms of the plaintiff's hypoxic ischaemic encephalopathy and cerebral palsy. 4. The plaintiff's key experts on that issue are Dr Michael Harbord, paediatric neurologist and Dr Andrew McPhee, neonatologist. Dr Harbord's report goes both to causation (whether a brain injury would have occurred with earlier delivery) and damages issues and it is therefore highly likely he will be called in any separate hearing in respect of liability and also, any later hearing on damages. Whilst Dr Harbord says that in shoulder dystocia, in effect, these injuries do not occur, he also states that if you have a shorter period of shoulder dystocia and a shorter period of hypoxic ischemic, that will require consideration of how that could have affected the plaintiff; what that might mean in terms of the plaintiff's cerebral palsy, his speech delay and his hyperactivity and autistic behaviour. 5. Dr McPhee's report goes to liability issues only. 6. The risk in separating liability off for determination now is one of potentially inconsistent findings in the liability phase of the trial and the damages phase of the trial. It is emphasised that, as yet, no attempt has been made to frame the questions to be determined on liability. 7. To give but one theoretical example of how inconsistent findings might arise, in the liability phase, the Court might conclude, having heard evidence from Drs Harbord and McPhee, that with a lesser period of time between the delivery of the head and the delivery of the body, there would still be sufficient hypoxia for the plaintiff to develop physical injuries in the nature of spasticity of the limbs, but not cognitive impairment. 8. When Dr Harbord then gave evidence during the quantum phase of the trial, he could potentially express different views as to the consequences of the period of hypoxia in circumstances where Dr McPhee was not present and the questions for the quantum experts had been framed around the earlier findings. Thus, there would be the potential for inconsistent evidence and findings and multiple appeals. 9. Finally, it also seems very likely that the plaintiff's mother will give evidence both in any trial in respect of liability questions and any later trial on quantum question. In light of the pleading at paragraph 32, it is at least possible that credit issues will arise as to the claim that the plaintiff's mother and potentially, other family members, made requests for a caesarean section during labour and that such requests were denied or ignored. 10. Again, that suggests that the superficial attractiveness of a separate trial on liability may not actually result in savings of time and costs. Obvious difficulties would arise if a credit finding were made in respect of the plaintiff's mother in the liability phase of the hearing and she then gave evidence on quantum questions at a later trial, before a different judge.
2. It was the first defendant's position that that the preferable course is for the matter to be judicially case managed, with six monthly or yearly reviews for the next couple of years, with a view to then being listed for "an all-issues hearing."
3. It was agreed that the substantive proceedings involve allegations of negligence against the defendants in respect of the management of his mother's pregnancy and her labour/delivery on 30 August 2015. However, the first defendant indicated that a greater level of detail of the pleaded claim would be useful for the purposes of the plaintiff's application, as follows: 1. In the SFASC, the plaintiff asserts that there were shortcomings in the antenatal management of his mother and specifically alleges that in her clinical circumstances, there were a number of risk factors which meant that there was an increased prospect of shoulder dystocia occurring during labour. In consequence, the plaintiff alleges that his mother should have been offered a pre-labour caesarean section. 2. Additionally, the plaintiff makes complaints in respect of the management of his mother's labour and delivery. That is, after she was admitted to hospital late on 29 August 2015, it is alleged that an earlier call should have been made to the on-call consultant obstetrician for delivery because of a prolonged late first stage and prolonged second stage of labour in circumstances where the plaintiff's mother was already a poorly controlled gestational diabetic. Further, the plaintiff makes complaints as to the first defendant's management of the labour and delivery. In part, those allegations relate to the management of the delivery once shoulder dystocia was encountered. The plaintiff thus alleges deficiencies in the techniques employed to overcome shoulder dystocia and alleges that as a result, there was a delay between delivery of his head and delivery of his body of 18 minutes. The plaintiff says that the delay between delivery of his head and body resulted in hypoxic ischaemic encephalopathy such that he is left with permanent brain injury and consequent cerebral palsy. 3. With respect to the first basis relied upon by the plaintiff, that the substantive basis upon which the plaintiff moves is the assertion that the quantum of any damages will not be capable of determination for many years, the first defendant submitted the following: 1. The first defendant acknowledges that the plaintiff's experts have expressed concerns about their ability to presently provide opinions as to the plaintiff's long-term abilities/disabilities and needs. In that regard, the first defendant noted the views of Dr Maclean, the plaintiff's expert paediatrician, as set out at [10] of the plaintiff's written submissions. Dr Buckley, the plaintiff's expert paediatric rehabilitation physician, usefully summarises the views of various of the plaintiff's and defendant's experts in this report of 22 August 2022. 2. However, there is no consensus that it will be many years until a meaningful, evidence-based, estimation of the plaintiff's long-term abilities and disabilities and consequent needs can be provided. The high point for the plaintiff is the suggestion by Dr Buckley that the plaintiff will need to reach "young adulthood" before he can say whether the plaintiff will require maximum care or something less. 3. The plaintiff's experts express doubt and concern about their capacity to presently provide such opinions. However, the plaintiff's other quantum experts, such as Dr MacLean, paediatrician, and Ms Burns, a registered nurse, do not suggest it will be more than 8 years before a proper assessment can be made. 4. The plaintiff is already eight years of age, and the evidence unequivocally indicates that he is significantly injured. In many other matters involving brain injured infant plaintiffs suffering cerebral palsy, expert opinions are provided in which views are expressed as to medium to long-term levels of disability and consequent need. Of course, the Court must have regard to the evidence in this case, rather than generalities, but it is emphasised that the evidence is not all one way. 5. Of the first defendant's experts, Ms Susie Mullen, occupational therapist, in her report of 4 November 2020, assessed the plaintiff's care needs from his then age of 5 through to 18 and then into adulthood. She acknowledged difficulties in predicting his future levels of independence, but ultimately concluded that he would likely require full-time care. 6. Likewise, Dr Louise Tofts, a paediatric rehabilitation physician, in her report of 25 November 2020, provided views as to the plaintiff's future treatment needs and also, his future work capacity. She indicated that he was not fit for manual jobs and that his capacity for non-manual jobs depends on his level of cognitive capacity. Dr Tofts indicated she would like to see results of neuropsychological testing before providing a view as to whether the plaintiff would be fit for work in any capacity. 7. The first defendant notes that there is already evidence from an expert clinical neuropsychologist for the plaintiff, A/Prof Batchelor, in her report of 15 March 2021. She suggests that the plaintiff is demonstrating significant cognitive abnormalities. The first defendant is presently seeking instructions for the first defendant to obtain its' own neuropsychological evidence. 8. The first defendant's position is that, when properly considered, the available quantum evidence indicates some present difficulties in assessing the level of the plaintiff's abilities and consequent needs, but not any long-term difficulty. There is only limited evidence to the effect that the plaintiff's clinical condition will not be capable of informed medical opinion in the next couple of years. It is noted that the plaintiff bears the onus on this application. 1. With respect to the second basis relied upon by the plaintiff to seek a separate hearing (that the plaintiff's principal liability witness Professor O'Connor will be unavailable to give evidence in the case), the first defendant submitted the following: 1. The apparent reliance on Professor O'Connor's age and the likelihood that he will no longer be alive in 10 years is neither here nor there. Irrespective of whether the Court grants a split trial with the question of liability only being determined at this stage, the plaintiff abandoned order 1 at the hearing, that the hearing be deferred until at least August 2031. 2. The evidence does not support the need for any trial on damages to be delayed for that length of time. Even if it may take a couple of years for the quantum evidence to be completed, that in no way suggests that Professor O'Connor will not be available if an all-issues trial were to be set down in that time frame. There is simply no evidence addressing his availability over the next two, four, six or eight years. What evidence there is in respect of his availability in 10 years is limited and unpersuasive. No relevant source has been identified, other than suggesting that someone in his room stating that he will be "pushing up daisies in 10 years' time and he will be retired in 5-6 years".

The Second Defendant's Submissions

1. The second defendant opposed the application and took the same position as the first defendant.

The Plaintiff's in Reply

1. The plaintiff submitted the following in reply, in oral submissions: 1. The amendments to the Limitation Act 1969 (NSW) ("the Limitation Act") mean that the parents have to take steps very early or otherwise the limitation period would operate against the plaintiff. The practical effect is that, quite often in these sorts of cases there will be separate trials, unless it is a frank, clear orthopaedic injury to a child. Trials should be heard separately where it is not possible to determine the long-term effects. This is such a case. There is no alternative than to have those matters determined separately from the question of damages. 2. According to Dr Harbord, what caused the plaintiff's cerebral palsy was that he had a heart attack. Hence, as a matter of fact, it does not matter what would have occurred if the cardiac arrest had been treated earlier. The child was not breathing, the cord was compressed, no oxygen was going to the child's body and as a result, the child had a heart attack and suffered severe brain damage. 3. Once a plaintiff has proven that, by reason of omission there was a breach of a duty of care, it is not legally relevant to inquire what might otherwise have occurred if the breach had not happened: Bennett v Minister of Community Welfare (1992) 176 CLR 408 (Gaudron J) ("Bennett"). 4. If the disability has been caused by the breach, that is the end of the inquiry: Bennett. 5. In terms of the matter relating to credibility, it is very rare for a Court to make a finding that someone was deliberately lying. It is not uncommon for a Court to make a finding that it does not accept the evidence of one witness or another, but it is difficult to see how, even if the Court had reservations about any aspect of the mother's evidence, it would in any way impede the Court's task in assessing damages.

CONSIDERATION

1. The plaintiff, in reply, raised the difficulty faced by the parents due to amendments to the Limitation Act which has resulted in an increase in separate trials in these sorts of cases. The plaintiff appropriately relied in this respect on observations made by Barr AJ in McLean by her tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400, where his Honour said at [13]: "[13] More recently, no doubt in response to legislative changes the courts have been readier to separate issues. One reason for this change of approach, at least where plaintiffs are children, must have been the changes made in 2022 to the Limitation Act 1969. Whereas previously the time limited for the commencement of proceedings did not begin to run until the child became of age, the child is now deemed under s.50F(3) for the purposes of the commencement of the period to know what is known or ought to be known by a capable parent or guardian. One inevitable result of that change is that the court may expect to receive claims on behalf of children claiming to be suffering disabilities many years before damages can be assessed."
2. So much may be acknowledged with respect to the application in this case.
3. Nonetheless, without depreciating any of the above statements of principle, the following general propositions may be advanced: 1. Ordinarily, all questions or issues of fact and law in the proceedings should be determined at one time. 2. A party seeking an order that there be a determination of separate questions bears the onus of making good that proposition. 3. In discharging that onus and in resolving the application, it is necessary that there be precision in both the formulating of the question and specifying the facts upon which it is to be decided: Idoport (Einstein J at [7]). 4. It must be possible to see, clearly, that the separation would facilitate the quicker and cheaper resolution of the proceedings. 5. The party seeking to separate the proceedings must ultimately satisfy the Court that it would be just and convenient for that order to be made.
4. There was no issue with the third proposed principle above (at 24). The plaintiff is a child who is 8 years of age suffering from diplegic and ataxic type cerebral palsy, with severe developmental (cognitive) impairment. There are clearly defined issues as to liability as discussed at the outset of this judgment.
5. Having given that introduction, I will now turn to the three primary issues relevant to the application under UCPR r 28.2.

Whether the quantum of damages to which the plaintiff may be entitled will not be capable of determination for many years

1. The parties agreed that at the present time, there is at least some degree of difficulty in assessing the level of the plaintiff's abilities and consequent needs in order to determine the ultimate quantum of damages.
2. There was a debate, at hearing, about the realistic length of time until a meaningful, evidence-based, estimation of the plaintiff's long-term abilities and disabilities and consequent needs can be provided.
3. The plaintiff submitted that it would be at least another 8-10 years before the plaintiffs' damages are able to be appropriately assessed. The first defendant submitted it could be 5-6 years.
4. The first defendant contended from Dr Buckley's Report that "early adulthood" is the high point for the plaintiff as a yard stick as to when the quantum of damages could be properly assessed.
5. The report of Dr Stephen Buckley, rehabilitation physician, of 22 August 2022 which was prepared with the benefit of reports by A/Professor Batchelor (15 March 2021), Dr Maclean (25 September 2020), Ms Mullen (4 November 2020), Ms Lindy Williams (22 July 2021) and Ms Burns (22 July 2021), indicated that there is a serious difficult in predicting the plaintiff's future care requirements and employability. Dr Buckley stated that "… Jedidiah will always be unemployable on the open employment market. Assessment for suitability for sheltered type employment will be deferred until he reaches the age of 18." [1]
6. Dr Buckley stated the following in his report: "I remain concerned at the possibility of settlement of Jedidiah's case when the requirements for care are so uncertain, with respect to employability and care requirements. In my experience, these two items are the most expensive propositions in settlement of a case in regard to serious disability, but at the present time are no more than guessable. If I was asked to ignore the risk and difficulty in quantifying Jedediah's care needs now, and despite the risk, to make a proposal regarding, for example, his future requirements for care, I would indicate that the only "guessable" methodology would be to advise the maximum care possible and this would include, for example, two Registered Nurses, employed on a full time basis, seven days each week. In such circumstances, however, I would concede that Jedidiah may require much less, and this would not be able to be decided until he reached young adulthood. Similarly, I would advise that he is unemployable on the open employment market, even though it does remain possible at this time that he might find sheltered employment of some sort. …" [2]
7. Dr Buckley explained that there is uncertainty as to the plaintiff's future as to care needs and employability. As to the time required to move beyond guesses, Dr Buckley referred to "early adulthood." This is a vague term which only reinforces, in my view, the imprecision with which those informing the Court can provide a timeline as to when the quantum of damages can be accurately assessed. It would seem to suggest well in excess of 5 years.
8. Dr Batchelor, clinical neuropsychologist, in her report of 15 March 2021 opined that the plaintiff is too young to provide a description of his current disabilities. [3]
9. "Too young" is, again, an appropriately vague metric. In written submissions, the first defendant indicated that they were seeking instructions to obtain their own clinical neurological expert and hence, that evidence is not before the Court for the purposes of this judgment.
10. The report of Dr Ken Maclean dated 25 September 2020 identified a series of conditions from which the plaintiff suffered due to his traumatic birth however indicated that the prognosis of these problems are unable to be determined at this time due to young age, transitional developmental status given he is a preschool aged child, the inherent complexities of the neurodevelopmental presentation with a divergence between everyday language and communication difficulties vis-à-vis the insights into higher order cognitive/mental abilities. [4] As above, the report also stated that it "is not possible or appropriate to predict long term needs, educational attainment, employment or vocational outcomes at this stage, beyond identifying the need for review and reappraisal." [5]
11. In his report of 7 May 2020, Professor O'Connor stated that, "the costs of such interventions [with respect to treatment for cerebral palsy] would be difficult for me to estimate however at a general level the annual costs of delivering holistic care to a child suffering from severe cerebral palsy are likely to be well in excess of $145,000 per annum." [6]
12. One of the first defendant's experts, Ms Mullen, concluded the following: [7] "Until age 12.5 years, Jedediah will continue to require additional assistance for 21.5 hours per week for personal care skill development (14 hours), domestic assistance (2 hours), transport to medical and therapy appointments (2 hours) and implementation of home therapy programs (3.5 hours). Refer to Section 8. Until age 18, Jedediah will continue to require assistance for 28.25 hours per week, to include weekend and school holiday support. … As an adult aged 18 onwards, it is likely that Jedediah would require 24 hour daily commercial care."
13. Ms Mullen works within the confined field of occupational therapy and only speaks to the "likelihood" of the plaintiff's therapeutic care needs after the age of 18.
14. The evidence of the first defendant in relation to the report of Dr Tofts, of 28 November 2020, emphasises the difficulty in assessing the plaintiff's abilities. Dr Tofts found that the plaintiff would not be able to work in a manual job and indicated that findings about the plaintiff's capacity for work would also be impacted by whether or not he develops the capacity to drive a modified vehicle and would therefore be independent with transport. These assessments are also attended by uncertainty at the time.
15. After a review of the evidence, I accept the plaintiff's contention that the quantum of damages to which the plaintiff may be entitled cannot presently be identified with any degree of accuracy.
16. The material before the Court suggests that there is little opportunity to be precise about how long it will be until the quantum of damages is able to be properly assessed for a considerable period of time. The plaintiff submitted it would be between 8-10 years. The first defendant submitted it could be 5 or 6. At this stage, the plaintiff's estimates seem more realistic.

Is there an overlap of factual issues in this case between the issues of liability and the issues of damages?

1. The first defendant agreed that the plaintiff's claim with respect to antenatal management involves a clear delineation between causation and damages issues.
2. After reviewing the parties' submissions and the evidence before the Court, I agree with the submission made by the first defendant that there is a potential overlap between liability and damages with respect to the management of labour and delivery (of the plaintiff).
3. Dr Harbord, who is a key expert in the plaintiff's case, issued a report of 12 February 2021 which goes to both causation (at [41]-[49]) (whether a brain injury would have occurred with earlier delivery) and also to damages (at [52]-[53]). Dr McPhee's report of 15 June 2022 (another key expert witness) goes to issues of liability only.
4. I do not understand the first defendant's contention that this is an example which could potentially lead to inconsistent findings if there were separate trials for liability and damage. It was contended at the hearing that Drs Harbord and McPhee could give incongruous evidence regarding the consequence of the period of time between the delivery of the head and the body of the plaintiff for limb spasticity and cognitive impairment at the hearing for liability. Hence, if Dr Harbord were to give his evidence at the hearing for damages, without an adversarial, this could lead to inconsistent evidence and multiple appeals.
5. Nonetheless, if there are to be separate hearings, the questions as to liability will be resolved at the hearing regarding liability. There would seem to be a remote prospect of the re-examination of evidence relevant to liability at the hearing for damages. The plaintiff correctly identified this consideration in reply, at the hearing. If a breach of a duty of care is established at the hearing for liability, evidence related to breach would no longer be admissible at a hearing for damages. If the disability has been caused by the breach, that is the end of that inquiry.
6. Further, Dr Harbord is the only medico whose evidence the Court has been pointed to which represents a potential problem for an overlap of issues of liability and damages. The first defendant has only brought the Court's attention to two paragraphs within Dr Harbord's report which go to the issue of damages ([52] and [53]). This sliver of evidence which represents a potential overlap in factual issues with respect to liability and damages is not enough, in my view, to be a significant obstacle prohibiting separate hearings.
7. Regarding the suggestion by the first defendant that credit issues could arise as to the claim that the plaintiff's mother and potentially, other family members, made requests for a caesarean section during labour and that such requests were denied or ignored, it is pure speculation at this stage.

The availability of Professor O'Connor to give evidence at the all-issues hearing

1. Although not strictly necessary to continue, I will briefly address the plaintiff's concerns about the availability of Professor O'Connor to give evidence at an all-issues trial.
2. The plaintiff contended that if it is 8-10 years before the quantum of damages available to the plaintiff can be accurately assessed, that there is a risk that the primary expert witness, Professor O'Connor, would be unavailable, given he may be retired or in the plaintiff's submission "pushing up the daisies in 10 years' time." [8]
3. The concern was that if Professor O'Connor was not available to be a witness the plaintiff would have to duplicate all the cost and expenses incurred to date in relation to the expert evidence he has provided.
4. In my view, the plaintiff's submission that Professor O'Connor will be unavailable to give evidence in ten years' time is somewhat overblown. It is based on a rather obscure piece of evidence given by a staff member at his medical rooms. Even if he is retired, Professor O'Connor will be able to give evidence at a hearing.

Other Discretionary Factor

1. In Sripathi No 1, Harrison J (as his Honour then was) was satisfied in the circumstances that, if the proceedings went to hearing, the plaintiff would obtain a judgment for damages against the defendant. There was no dispute, in those proceedings, that the damages (if recovered) would be substantial. There is nothing in these proceedings to say any differently.
2. On the material before the Court and with the benefit of Harrison J's judgment, I am similarly satisfied that the plaintiff is likely to succeed in obtaining a judgment for damages against the first defendant.
3. One clear benefit of separate hearings is that, if the plaintiff does establish liability, it is possible that he will be eligible for another interim payment under s 82 of the Civil Procedure Act 2002 (NSW). Given the severity of the plaintiff's disability and the extra care and support he currently requires, it is in the interests of justice that those issues be decided, at the earliest available time.
4. Further, I consider the issues as to liability are very clearly defined. The hearing of the separate question of liability will, in my view, facilitate the quicker and cheaper resolution of the proceedings.

CONCLUSION

1. In the circumstances, I have determined that there shall be a separate hearing on the issue of liability only, pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).
2. There was no dispute that costs should be in the cause.
3. The parties should bring in Short Minutes of Order reflecting this judgment by 4.00pm on Monday 18 March 2024.

Endnotes

1. Report of Dr Batchelor dated 15 March 2021, p 9.
2. Report of Dr Buckley of 22 August 2022, pp 7-8.
3. Report of Dr Batchelor dated 15 March 2021, p 9.
4. Report of Dr Ken Maclean dated 25 September 2020, p 36.
5. Report of Dr Ken Maclean dated 25 September 2020, p 38.
6. Report of Professor O'Connor dated 7 May 2020, p 21.
7. Report of Ms Susie Mullen dated 4 November 2020, p i.
8. Paragraphs 3 and 4, Amended Affidavit of Gillian Potts filed 3 March 2023. 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: 15 March 2024