Thomas v Oakley

FILE NUMBER(S) : SC 20286/01 COUNSEL : D Graham (P) S Woods (D) SOLICITORS : Turner Freeman (P) Tress Cocks and Maddox (D)

• 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20286/01 - STEVEN THOMAS BY HIS TUTOR SHIRLEY STEWART AND 1 OTHER v MARK OAKLEY AND 2 OTHERS

JUDGMENT 1 HIS HONOUR: The plaintiff in these proceedings suffers from cerebral palsy and other associated problems. He is now aged three and a half years, having been born at the Bega District Hospital on 14 March 2000. 2 It is his case that the condition of cerebral palsy from which he suffers was caused by hypoxic-ischaemic brain damage occurring during the period of his mother's confinement at the Bega Hospital. He claims damages in negligence from that hospital and from the first and second defendants, who were respectively medical practitioners. 3 The first defendant was the treating general practitioner/obstetrician and the second defendant was the specialist with whom the first defendant apparently consulted for advice as to the management of the plaintiff's mother, during the pregnancy, and also during the admission to hospital. 4 By notice of motion filed on 27 August 2003, the plaintiff seeks a separate determination of the question of liability. 5 The relevant facts as alleged in the statement of claim would indicate that the plaintiff's mother was admitted to the hospital on 6 March 2000 in respect of certain problems which were emerging, including pregnancy-induced hypertension. 6 It appears that on 7 March 2000, the first defendant spoke to the second defendant for advice concerning the pregnancy and pending delivery of the plaintiff. As a result of that consultation, the plaintiff's mother was admitted to the hospital on 12 March 2000 for induction of labour. It is alleged that the admission to the Bega Hospital, as distinct from a tertiary hospital such as the Canberra Hospital, or the advice for that admission, was negligent insofar as the condition of the plaintiff's mother was such that she presented as a high risk for delivery, the case being one that might require an emergency Caesarean section, as well as intensive expert neonatal care for the child. 7 It is next alleged that at 9.55 am, on 12 March 2000, the plaintiff's mother was induced by administration of appropriate medication and that during the course of that day, and the following day, while the labour was not progressing there were numerous adverse signs detected which indicated a need for appropriate intervention, including the transfer to a tertiary hospital. 8 It is alleged that at some time after 7.30 PM on the evening of 13 March 2000, the first defendant again sought advice about the management of the condition of the plaintiff's mother, as a consequence of which the second defendant advised the first defendant to proceed with a Caesarean section in the event of certain events occurring. 9 It is the plaintiff's case that at 0.22am on 14 March 2000, the plaintiff was delivered by Caesarean section with the condition which resulted in him suffering from cerebral palsy. 10 A good deal of medical evidence has been placed before me, in the form of the exhibits to the affidavit of Lynley Jaye Clifton, which refer to the various matters upon which the plaintiff relies to show that the pregnancy and the confinement were inappropriately managed, that had there been a more timely intervention, particularly by way of Caesarean section, then the brain damage which the plaintiff has suffered would have been avoided. 11 To some extent, there has been an admission of liability on the part of the first and third defendants insofar as it is admitted that:

(i) standard obstetric practice, as at March 2000, dictated that delivery of the first plaintiff be expedited at about 21.00 hours on 13 March 2000 and,

(ii) delivery was not expedited at about 21.00 hours on 13 March 2000. 12 It is however alleged, that any breach of duty arising was unconnected to the plaintiff's injury. Such injury, it is submitted, had already been occasioned without any fault on the part of the defendants. Moreover, it is submitted that any delay between 21.00 hours and the time of delivery was reasonable and in accordance with acceptable practice, such that any injury sustained in that period was not due to fault. 13 Accordingly, liability remains substantially in dispute so far as those defendants are concerned. 14 The second defendant maintains his denial of breach of duty absolutely. 15 Additionally, it has been pointed out, in correspondence between the parties, that all defendants deny causation between breach of duty as alleged and injury to the first plaintiff. 16 It is in those circumstances that the plaintiff seeks a separation of the issues of liability and damages, in particular upon the basis that, having regard to the age of the plaintiff, it would be impossible. until he is much older, to undertake any assessment as to his long-term needs and prognosis. In this regard, some material has been placed before the Court in the form of a report from Dr Kevin Lowe, a specialist paediatric rehabilitation physician to the following effect: "In my opinion Steven will continue to have severe physical and cognitive impairments into the future and this will impact on his level of independence, need for treatment, care and equipment. It is likely that his needs will continue to be high in terms of treatment, care, equipment and aids. In terms of the age in [sic] which it is possible to reasonably write an accurate assessment it is not possible to do this until he reaches skeletal maturity as he is at high risk of developing contractures, hip dislocation and scoliosis which would have a significant impact on his care. At this stage it is too early to determine his long-term prognosis in terms of his epilepsy, epileptic control and need for medication."

17 Additionally, there was a report from Professor Wayne Reid, a neuropsychologist to the following effect: "It is my clinical opinion that it is not advisable to conduct a full neuropsychological assessment before the child is six years of age. The reason for this is that a child is far from fully developing their cognitive functioning and that the assessment at three years of age could mainly provide information about sensory motor and early development of language skills. At six years however, one can begin to make some assessment of the child's intellectual and cognitive development and to compare this with children of a similar age. Further assessments will also be required in later childhood and early adolescence to monitor cognitive development and acquisition of academic skills."

18 The power of the Court to order a separate determination of an issue such as liability stems not only from its inherent jurisdiction, but also from the Supreme Court Act 1970, section 87, and the Supreme Court Rules part 31 rule 2A. The exercise of that jurisdiction or discretion has been considered in a number of cases, some of which have been decided in this list. 19 In Murphy v David Chun Wan Chow [2003] NSWSC 303, Studdert J conveniently set out the principles which have been considered applicable to the exercise of this power. His Honour's observations appear to me, with respect, to be a comprehensive statement of the current jurisprudence which I would adopt as follows: "(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 NSLWR 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)."

20 His Honour referred additionally, in that decision, to dicta of Callinan J in Perre and Others v Apand (1999) 198 CLR 180 and Tepko Pty Ltd and Others v The Water Board (2001) 206 CLR 1, upon which the defendant in the present case places some reliance. 21 It is appropriate to extract the relevant passages cited by his Honour as follows: "In Perre & Ors v Apand (1999) 198 CLR 180 Callinan J said at para 436: 'Care does need to be taken in deciding whether to conduct separate trials of difference issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid...' In Tepko Pty Ltd & Ors v The Water Board (2001) 206 CLR 1 Kirby and Callinan JJ said in their joint judgment at para 168-para 170: '[168] The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P ( Tepko Pty Ltd [1999] Aust Torts Reports 81-525 at 66,317) and Fitzgerald JA ( Tepko Pty Ltd [1999] Aust Torts Reports 81-525 at 66,325) were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd (1999) 198 CLR 180 attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap. [169] The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests. [170] Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question'." 22 I accept it is the case that usually it is desirable that all issues be heard together unless there are some real savings in hearing time and costs, or, alternatively, some benefit to a party which would avoid an unfair imbalance in the administration of justice. 23 One circumstance where there is a particular advantage in an early determination of liability, appears not to have attracted much attention in the authorities. The matter to which I refer concerns the need, in cases involving professional negligence, for issues of liability to be determined in the light of contemporary medical knowledge. If there is a significant delay between the events which are said to give rise to liability and their determination, then there is a real prospect of there having been significant change in practice and knowledge, such that it may be difficult for the parties to have the issue determined by reference to the considerations which would have applied to a proper discharge of the duty of care at the time that the injury was occasioned. 24 Moreover, if there is a significant delay between the events giving rise to the claim and its determination, there is a risk of records being lost, or of witnesses being unavailable, or of memory having dimmed. In those circumstances, there appears to me to be a strong reason, so long as there is no injustice caused to one party or the other, for questions of professional negligence to be determined as close as possible to the events which give rise to the claim for liability. 25 An important factor will always be that which has been identified in the authorities, namely that it is important to look to the extent to whether there is any intermingling of evidence on liability and quantum such that a separation of the trial may require a reconsideration of the evidence, with the possibility of a different outcome and of a lack of any real saving in time or costs. 26 That is always a significant aspect for an application such as the present, and it is something which Studdert J emphasised in Murphy v Chow. It is the consideration which gave rise to the caution expressed in decisions such as Perre v Apand and Tepko v The Water Board. It is a matter to which I have paid careful attention in the present application. 27 In this case, the plaintiff submits, in favour of the separation of the issues in substance, that: (a) their separation would allow for the issue of liability to be determined closer to the relevant event and, therefore, potentially with greater reliability;

(b) if the issue of liability were to be decided against the plaintiff, then there would be a very substantial saving in costs and Court time by avoiding an unnecessary and lengthy hearing on damages;

(c) a favourable determination on the liability issue for the plaintiff would give rise to a real prospect of facilitating an out of Court resolution of the proceedings by way of mediation;

(d) a favourable determination on liability would simplify and facilitate an application for an interim payment of damages under section 76E of the Supreme Court Act 1970;

(e) there will be little or no overlapping of witnesses on the issues of liability and damages, so that there are minimal prospects of inconsistent findings, or of difficulties arising in cross-examining witnesses, if the issues are heard separately, and that;

(f) it is premature to assess the plaintiff's damages because of his age, but it would be unfair to have the whole matter languishing in the list, waiting for him to reach an appropriate age for an assessment of damages to be undertaken. 28 In those circumstances, it is argued that the balance of convenience supports a separate trial on liability. 29 The defendant, however, submits that: (a) the Court should pay particular attention to the problem identified by the High Court, in cases involving negligence, where there are likely to be difficult and contested issues of causation; (b) a separate trial would not lead to any real benefit, since there would still need to be a hearing on causation, particularly concerning the question as to the precise area to the brain where damage was occasioned, and the time at which it was occasioned, there being, it is said, an issue as to whether the problems, or some of them, developed, so far as the infant was concerned, prior to the confinement; (c) there would be no real savings because admissions, albeit limited, have been made by the defendants, or at least by two of them; (d) there would be no significant costs savings, so far as the damages assessment is concerned, since, in common with most cases of this kind, agreement would be likely to be reached on most items of loss and ongoing expense; (e) there might be no reduction in time or cost overall and, indeed, there may even be an increase in the length of hearing having regard to the need to revisit the matter at a later time, and that; (f) the plaintiff's argument in relation to the award of interim damages has no validity since, whether or not liability has been determined, it is always open to a plaintiff to seek such a determination, yet no such determination has been sought to date. 30 Those matters are clearly properly to be taken into account, however, it is my assessment that this is a case where, for the reasons identified by the plaintiff, which I am satisfied have been made good, the balance favours an early determination of liability. In that regard, it appears to me that it would be an inevitable part of the liability determination to ascertain precisely what injury resulted, to the plaintiff, when it resulted, and how it was occasioned. 31 The issue which appears to have been joined inevitably raises that issue so far as the plaintiff must show that the injury suffered was due to the fault of the defendants. Depending on when, how and why that injury was occasioned, so will the question of the liability of each defendant be determined. The consequences in terms of the plaintiff's future needs, his economic loss, and the general loss of enjoyment and amenity of life raise quite separate issues for assessment depending on the extent, if any, to which the defendants are held responsible for his injuries and resulting cerebral palsy. The case is therefore not one of intermingled evidence or witnesses, those experts who would be concerned in relation to ongoing needs and care, coming, in all probability, from quite different disciplines than those concerned with obstetrics and neonatal care. 32 The issues are no doubt complex but, in my view, it is highly desirable that liability be determined now, at a time when the evidence is readily available, and more likely to be fresh in the minds of those involved. 33 If the liability issues are determined in favour of the plaintiff, then one would have thought that the damages assessment would be confined and would occupy less Court time than might be occupied if all issues were at large and determined in a single trial. 34 There also can be little doubt that a determination in favour of the plaintiff would significantly facilitate the recovery of an interim payment, thereby reducing the stress, hardship and uncertainty which would be occasioned were the matters left undetermined until the plaintiff had reached the age for more reliable assessment of his needs and losses. 35 The case to my mind has greater similarity to those which came before the Court, and where orders were made for separate trials in Richards v Rahilly (2002) NSWSC 943, and in Costello v South Eastern Sydney Area Health Service (2001) NSWSC 751, than it does to the decision, for example, in Webb v South Eastern Sydney Area Health Service (2003) NSWSC 329. That last mentioned case was one involving a plaintiff who was 27 years of age when the application was brought. It was, as a result, a case where there was unlikely to be any significant delay so as to permit a proper assessment of the consequences of the alleged injury which the plaintiff suffered. Moreover, it was a case of some complexity having regard to the different bases for the claims which were brought against the State, and against the medical practitioners, or Area Health Service that were involved. 36 I do note that Mr Woods for the defendant has pointed to the possibility that there may be some greater light thrown on the time and location of the injury, by future testing of the plaintiff, that is testing which would need to occur when he was somewhat older than he presently is. There is however no medical evidence before me to suggest that this is the case and, as a consequence, I do not think that any weight can be given to the submission. 37 I do not think that such consideration outweighs the benefits, otherwise, of separating liability from damages, or that it is something that would occasion any risk of unfairness so far as the defence is concerned. 38 In those circumstances, I will make an order in accordance with paragraph one of the notice of motion. 39 I make an order that the costs of the motion be costs in the cause. I make that order because I consider that the application was one which properly attracted competing views, and is not one that inevitably would lead to an order of the kind sought. 40 I note that the matter can return for directions before the Registrar. **********

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