Webb v South Eastern Sydney Area Health Service & Anor; Webb v State of New... [2003] NSWSC 329 | Case summary

In support of that notice of motion Mr Harvey read affidavits sworn by Arun Lakshmanan on 21 July 1999 and of Timothy Kelly sworn 14 July 1999. 9 None of the above deponents was required for cross examination. 10 I have ultimately treated all the above affidavit evidence, to the extent of its relevance, as being evidence to be considered on each of the notices of motion. 11 At the outset I observe that, consistently with submissions made on the hearing of these applications, I should proceed on the basis that in each case liability will be strenuously contested. 12 Each of the applications before the Court requires consideration as to whether these causes should be heard together or not. There are compelling reasons why, if the plaintiff proves his case in negligence against both defendants, his claims for damages should be heard together. Otherwise there is risk of doubling-up, or, alternatively, there is the risk that the plaintiff might fall between two stools, failing to be compensated for some heads of damage undoubtedly suffered but not regarded by the court as resulting from the breach of duty then under consideration. Moreover the same evidence as to damages would have to be considered at each trial if separate trials as to damages took place, involving unnecessary duplication, unnecessary costs and unnecessary court hearing time. None of the parties to these causes would resist an order that the issue of damages in each case should be heard together in the event that that issue assumes relevance, and I would unhesitatingly make such an order. 13 What of the issue of liability in these cases? Should orders be made under Pt 31 r 2 as the moving parties on the defendants' motions seek, and, if so, should the issues of liability in each of these cases be determined at separate trials? Alternatively, should the Court make the orders which the plaintiff seeks under Pt 31 r 7, which would have the effect of both causes being heard together in their entirety? 14 Mr Graves submitted that there would be obvious overlap in the relevant facts to be proved in the two cases. In the proceedings against the hospital and the doctor there would be a need to introduce evidence as to what occurred after the basketball match in 1989. It was further submitted there would be a need to call both lay and expert evidence twice if there were separate trials. 15 It was further submitted that the plaintiff should not have to conduct separate trials, with the attendant risk of having to prosecute separate appeals if the need should arise. 16 Mr Graves also submitted that separate trials would not be an efficient use of the court's resources. 17 Mr Downing submitted that the only overlap in the two cases on the issue of liability was an historical one. Otherwise the two cases were wholly distinct and there was much medical evidence that would be required in the cause concerning the plaintiff's treatment in 1986 which was irrelevant to the case arising out of the events in 1989. In those submissions Mr Downing was supported by Mr McGillicuddy and by Mr Harvey. 18 Mr Harvey referred to the essentially different nature of the case on liability against the State of New South Wales. The liability issue there concerned the scope of the duty of care of a school authority in the circumstances in which one student pushed another from behind. I would add that there was a further issue identified in Mr Kelly's affidavit concerning whether there was fault in the failure to screen the plaintiff, to which I made earlier reference. In any event, Mr Harvey submitted that the issue of liability in his case did not involve the more complex medical issues involved in the other claim and the liability issue in his case, if tried separately, would be of significantly shorter duration than that other claim. I remark at once that I accept this submission which must be given due weight. 19 The principles governing the appropriate exercise of the power conferred by Pt 31 r 2 were conveniently summarised by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2000] NSWSC 1215. I referred to that summary in my recent judgment in Murphy & Ors v Chow [2003] NSWSC 303, and I will not repeat it here. 20 Applications under Pt 31 r 2 are frequently made in cases in the Professional Negligence List and in Richards v Rahilly [2002] NSWSC 943 Newman AJ was asked to set out a guideline for parties involved in medical negligence actions as to the type of cases in which it would be appropriate to order separate trials. His Honour declined to do so, recognising that it is essential to consider each such application, discretely weighing its particular facts and circumstances. I respectfully agree. What is called for in each case is a consideration of the particular application, calling in aid those relevant principles conveniently summarised in Idoport and their application to the circumstances of the particular case. 21 There are, of course, as earlier mentioned, divergent medical opinions concerning the plaintiff and his claims, in particular his claim against the Service and Dr Evans. The medical evidence is to be found in reports annexed to the affidavits of Ms Barnes. I do not propose to record references to all the reports there to be found, but there is a convenient history in the report of Dr Farey dated 29 March 2001 which provides a background against which the issues arising on these notices of motion ought to be considered: "Justin Webb, a 10 year old student, was initially admitted to the St George District Hospital on 12 April 1986 following a tackle at football in which he was struck on the chest by another player. Following the tackle Justin Webb noted numbness below his neck and initially an inability to move his arms or legs. He was admitted to hospital at 12.10 pm and was able to ambulate at 4.30 pm. Following the tackle Mr Webb noted that he had tingling in his fingers and a heavy dragging feeling in his legs. Clinical examination performed by Dr Rowe revealed that the patient had hyperreflexia in the lower limb with associated extensor plantar responses. He also exhibited an abnormal gait and clonus in his lower limbs. Peripheral sensation was normal. At 4.30 pm his gait was noted to have improved but there was hyperreflexia present in the lower limbs. Mr Webb was discharged from hospital at this time. The symptoms as experienced by Mr Webb and the signs documented by Dr Rowe are consistent with those produced by spinal cord neuropraxia with associated transient quadraparesis. Mr Webb has sustained a hyperextension injury to his cervical spine as a result of a front on tackle and this is a typical mechanism of production of transient quadraparesis. An X Ray of the cervical spine performed on the day of admission was noted to show a congenital block vertebra at the C5/6 level and asymmetry of the odontoid process possibly related to a Jefferson's fracture of the C1 vertebra. It was also noted that the congenital block vertebra may present an additional risk for a person involved in contact sport. No mention was made of the spinal canal diameter in the radiology report. A CT scan of the cervical spine was performed which did not reveal any evidence of fracture. The patient was recalled in view of his radiological findings and a repeat CT scan of the cervical spine was performed on 14 April 1986. This was reported as a normal examination. An entry made in the hospital notes on 14 April 1986 advised referral of Mr Webb to Dr Evans one week following discharge from hospital. Mr Webb was subsequently readmitted to the St George District Hospital on 11 October 1999 following an injury at school. Mr Webb was allegedly pushed from behind by another student. It is alleged that derogatory remarks were made by Mr Webb to another student who then pushed him. Mr Webb struck his face on the ground and it was noted that he was unable to move his arms or legs. In my opinion the most accurate report of the incident has been provided by the student Mr Robert Zobec. He stated that Mr Webb was pushed from behind. He stood still for 1 to 2 seconds and then fell to the ground. He allegedly made no attempt to break his fall. Mr Webb was allegedly struck with an open hand and the push did not seem very hard to Mr Zobec. This account is a typical account of a hyperextension injury causing spinal cord compression which unfortunately has rendered Mr Webb quadriplegic. Mr Webb was assessed at the St George District Hospital prior to being transferred to the Prince Henry Hospital Spinal Injuries Unit. The patient was assessed by Dr Andrew Leicester, Orthopaedic Registrar, who noted that Mr Webb had not had any symptoms related to the cervical spine or cervical spinal cord since his original episode of spinal cord neuropraxia. The examination performed by Dr Leicester revealed signs of C5 quadriplegia. An X ray of the cervical spine did not reveal any evidence of fracture or dislocation within the spine. An X ray revealed appearances consistent with developmental change and it was felt that there was some degree of fusion between the C4, C5 and C6 vertebral bodies. Mr Webb was reviewed by Dr Bernie Kwok, Neurosurgeon, who also made a diagnosis of quadriplegia secondary to spinal cord contusion. Mr Webb was commenced on intravenous Decadron and Mannitol. He was transferred to The Prince Henry Hospital following this review…" 22 The plaintiff remained in hospital until 13 May 1990 but sadly did not recover motor function. 23 What were claimed to be the shortcomings of treatment in 1986? It is the case for the hospital and Dr Evans that the plaintiff sustained a cervical cord neuropraxia in 1986 which rendered him temporarily quadriplegic but that he made a full recovery. 24 As previously observed, the plaintiff relies upon a number of experts in seeking to establish negligence. I propose here to refer to certain of the reports of Associate Professor Yeo and of Dr Illingworth in this regard. 25 Associate Professor Yeo saw x-rays of the plaintiff's cervical spine dated 6 May 2002 which he perceived confirmed the presence of congenital fusion at the C5-C6 level in the plaintiff's spine. Associate Professor Yeo wrote on 31 May 2002: "The MRI study of the cervical spine on the 6.5.02 has confirmed the presence of a very severe cervical canal stenosis most marked at the C4/5 disc level where the canal is reduced to several millimetres in diameter. This stenosis is also severe at the C2/3 level and there is a large focal area of hyperintensity within the spinal cord behind the upper part of the C3 vertebra confirming damage and oedema which extends within the spinal cord to the level of the C1 vertebra. The C5 and C6 vertebral body fusion is again demonstrated. There is some slight narrowing of the C4/5 and C6/7 disc spaces but no evidence of significant disc protrusion. These x-ray findings have confirmed the presence of the congenital C5/C6 fusion previously identified in x-rays including CT scans which were taken after his initial accident in 1986. These most recent radiological studies have also confirmed the presence of a very severe canal stenosis above the fusion which appears to be congenital stenosis. This marked narrowing of the spinal canal has been present since birth and contributed to the patient's transient paralysis in 1986. The CT scan report in the patient's hospital notes following that injury only indicated that there was no fracture present or dislocation in the cervical spine. The hospital notes confirm 'C5/C6 stenosis'. Further x-ray studies which were carried out after his second neck injury in 1989 report 'fusion between C3 and C6' but this finding has not been confirmed in the most recent studies. Mr Webb's susceptibility to serious spinal cord injury from relatively minor trauma appears to have been present since birth and this impression is confirmed by the development of transient paralysis when he had his first neck injury in 1986. Although he recovered from transient paralysis, the follow up consultation and clinical investigations should have alerted his treating doctors and parents of the patient's continuing susceptibility to serious spinal cord injury following relatively minor injury as a result of the congenital stenosis. A decompression laminectomy should have been considered and, in all probability, carried out within twelve months of the patient's injury in 1986. Had the patient had enlargement of the spinal canal from this surgery, he most probably would have avoided the devastating effects of the push in the back which occurred in 1989. He now remains with a permanent tetraplegia as a result of the injuries sustained in the incident in 1989." 26 Dr Illingworth, a consultant neurosurgeon, has written several reports, but I will refer here only to his report of 5 July 2002. In that report Dr Illingworth observed that no x-rays or scans had survived from 1986 but that there was an x-ray report from 1986 showing abnormality in the cervical spine. He commented that that report recognised a congenital blocked vertebra at C5-6, a fusion between those two vertebra, and also some asymmetry of the bony masses on the side of the cervical spine. There was also available a short record concerning a CT scan that had been undertaken but the record was simply to the effect that no fracture was detected. 27 Dr Illingworth was critical of the plaintiff's treatment in 1986. He said in his report of July 2002: "It is my opinion that if the clinicians and/or the radiologists had realised the full significance of the x-rays and that he had a severe spinal stenosis they would have taken the tentative diagnosis of a spinal injury much more seriously. They would therefore have recognised that he had had a significant, although on this occasion transient, spinal cord injury and that the cause of this was the congenital abnormality of the cervical spine which left him seriously at risk of further and more serious episodes in the future. They should have advised that to provide lasting and permanent protection the very severe spinal stenosis which must have been compressing the spinal cord even in activities of daily life should be treated by a decompressive laminectomy. Such a procedure would have carried some risk. Firstly, in view of the tight stenosis, great care would have had to be taken in the performance of a cervical laminectomy to avoid surgical injury to the spinal cord. There is nothing unusual about this since in cervical laminectomies usually performed for stenosis of the spinal canal, although in a much older age group, great care must always be taken to avoid damaging the spinal cord. Secondly, successful spinal fusion would have reduced the mobility of the cervical spine, since he would in effect have had a fusion between C2 and C6. This would have left him with a stiff cervical spine, and also led to an increased risk of degenerative change at the level below the initial congenital fusion, namely C6/7. He would thus in later life, at the age of about 40 to 50, have tended to have a further decrease in mobility in the cervical spine and would probably have had restriction in turning his head to right or left. Despite these disadvantages it is my opinion that he should have had a cervical laminectomy to protect him from the effects of further spinal cord injuries." 28 I observe that in the above extract there is opinion which would bear upon damage and damages. 29 Dr Farey disagreed with both Associate Professor Yeo and Dr Illingworth. In his report of 8 November 2002 he referred to an MRI scan of 4 June 2002 which revealed no evidence of instability in the cervical spine (and Dr Illingworth acknowledged this in his report of 7 July 2002). Dr Farey was critical of Dr llingworth's opinion concerning spinal surgery. As to this he wrote: "Dr Illingworth provides the opinion that spinal surgery namely C2 to C5 laminectomy and fusion should have been provided to Mr Webb who was aged 10 in 1986. Dr Illingworth considered that this would have prevented further spinal cord injury. Dr Illingworth correctly points out that there is a significant risk that the patient would develop spinal deformity following such a procedure including kyphosis. There is a significant incidence of the development of swan neck deformity following laminectomy in the child no matter whether a so called conservative laminectomy is performed and whether the C2 lamina is left insitu or not. Dr Illingworth stated that in view of this risk a posterior cervical spinal fusion should have been performed with placement of bone grafts between C2 and C5 with halo brace immobilisation in the post operative period. However, from my review of the Magnetic Resonance Imaging, there is clear cut narrowing of the spinal canal at the C5/6 level and in addition the spinal canal diameter at the C6/7level is not normal. There was also evidence of early narrowing of the C6/7 disc space. This length of spinal fusion would produce increased stress at the C6 level leading to accelerated degenerative change and possible development of kyphosis. This too would render Mr Webb more likely to sustain spinal cord injury and quadriplegia. The long lever arm produced by the C2 to C6 spinal fusion suggested by Dr Illingworth would render Mr Webb more likely to sustain spinal cord injury following any head or neck injury. Prophylactic surgery of the nature described by Dr Illingworth is highly controversial particularly in children and is generally not supported in the literature." 30 Dr Farey went on in the same report to express his disagreement with the opinion of Associate Professor Yeo to which I made earlier reference (at para 25): "I have read the report provided by Associate Professor John Yeo dated 31 May 2002. Dr Yeo considers that a decompression laminectomy should have been in all probability carried out within 12 months of the patient's injury in 1986. Dr Yeo does not mention the possibility of the patient developing swan neck deformity following such a procedure. I disagree with his opinion and for similar reasons to those provided when considering the opinion provided by Dr Illingworth." 31 Dr Cummine provided a report on 9 October 2002 in which he too expressed his disagreement with the proposition that surgery should have been performed in 1986. I quote this passage from Dr Cummine's report (at p 10): "I do not consider that there is convincing evidence that even if spinal canal stenosis had been demonstrated, it was appropriate to recommend to the patient an extensive decompressive laminectomy and concomitant fusion. As numerous authorities have indicated, there is no evidence available that surgery would have avoided the injury that he subsequently sustained. It is certain that his spinal cord would have been at risk during decompressive laminectomy and concomitant fusion." 32 It is necessary to approach these applications with a full appreciation of the medical issues, bearing in mind that a trial limited to the issue of liability would involve not only the issue of whether there had been a breach of duty but also whether the plaintiff suffered damage in consequence of that breach. As I see the medical evidence referable to proof of liability, involving as it does the necessity to prove damage, there will inevitably be significant overlap in the issue of damages. In my opinion, the most convenient and efficient way of dealing with the medical evidence in the proceedings concerning the events of 1986 is that all medical issues be addressed at the one trial and this weighs against ordering a separate trial on the issue of liability in the proceedings against the Service and Dr Evans. 33 In their joint judgment in Tepko Pty Limited v The Water Board (2001) 206 CLR 1 at paras 168-170 Kirby and Callinan JJ said: "In Perre v Apand Pty Ltd (1999) 198 CLR 180 attention was drawn to difficulties that can be caused when that course is adopted [referring to limiting issues to be tried]. 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." 34 There is likely to be such a degree of overlap in the medical evidence touching upon proof of damage and proof of damages that I am not persuaded as to the utility of a separate trial in the circumstances of this case. I have therefore concluded that Dr Evans' application for a separate trial on liability should be refused. 35 Whilst there is not the same extent of overlap in medical issues going to the proof of damage and proof of damages in the case against the State of New South Wales, I would anticipate that there would still be some overlap, all the more if the failure to screen allegation earlier mentioned is pursued. Moreover, I am well satisfied that the issue of damages in both cases should be heard together and it seems to me on balance that the application by the State of New South Wales to have a separate trial on liability should be refused. 36 I am satisfied that there are common questions of fact that arise in the proceedings concerning these claims and that in all the circumstances it is appropriate that I make the order sought in para 1 of the plaintiff's notice of motion earlier identified. I consider that the order sought in para 2 should be qualified. In general the evidence in one case should be treated as evidence in both cases, subject to this qualification: that the trial judge may limit the use of certain evidence to one case or the other. I propose to make an order therefore in these terms: "Subject to any order to the contrary made by the trial judge, that the evidence in one case be treated as evidence in both cases." 37 Should the trials be by jury or by judge sitting alone? 38 These causes were commenced prior to the commencement of the Courts Legislation Amendment (Civil Juries) Act, 2001. That Act commenced on 18 January 2002. That Act repealed the earlier provisions concerning trial by jury to be found in ss 85-89 of the Supreme Court Act, 1970. However, the effect of a savings provision in the Act of 2001 preserves for the purposes of these causes those repealed provisions that were contained in ss 85-89 of the Supreme Court Act. For relevant purposes then s 85(1) provided: "(1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise." 39 Section 86 provided, so far as is relevant: "(1) In proceedings on a common law claim, except proceedings to which either section 87 or 88 applies, issues of fact shall, if any party files a requisition for trial with a jury and pays the fee prescribed by the regulations made under section 130, be tried with a jury." 40 Section 89 then provided for trial of issues of fact without a jury: "(1) In any proceedings on a common law claim (except proceedings to which section 88 applies) the court may order, despite sections 85, 86, and 87, that all or any issues of fact be tried without a jury." 41 Under the legislative regime that applies to these causes, because the plaintiff duly requisitioned a jury for each cause they are to be tried with a jury unless the Court makes an order to the contrary under s 89. It is for the moving party to satisfy the Court that there are circumstances particular to these causes which require that an order be made that the jury be dispensed with. Hence it is for the defendants in each of these causes to satisfy the Court that the plaintiff should be deprived of trial by jury. 42 In Pambula Southern District Hospital v Herriman (1988) 14 NSWLR 387 Samuels JA said at 413: "…in order to make good an application to dispense with the jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general nature of a jury trial…" (Emphasis added) 43 The Court has to be satisfied "that there are circumstances particular to the case in hand which require an order to be made in order that justice be done between the parties": again see Pambula per Samuels JA at 414. 44 More recently, in Combined Excavations & Supplies v Bowis [2000] NSWCA 298 the Court of Appeal had occasion to consider the right to trial by jury in the District Court under the legislative scheme analogous to that in the Supreme Court Act. In that case the Chief Justice, at para 13, adopted the test expressed by Samuels JA in Pambula, saying: "In my opinion, what is required is the application of a test such as that which Samuels JA described in Pambula as 'singular circumstances' or 'specific difficulties' with respect to a particular case that do not arise in the general case. These are matters of fact and degree on which differences of opinion are to be expected. I do not propose this test as a universally applicable formula. I adopt these words as a convenient formulation to distinguish a case in which something more appears than the difficulties usually attendant on a jury trial." 45 In Combined Excavations Davies AJA said at para 85: " A jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial. This will not occur unless there is a factor which transcends the usual problems encountered with jury trials. The complexity of the particular case , or a need for expedition, or the impracticability of bringing a witness or witnesses to Sydney, and like matters, may provide such a factor ; but the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside . In his reasons for judgment in this case, the Chief Justice has referred to terminology such as 'unusual feature' , ' significant and special burden' , ' singular circumstances' and ' specific difficulties' . I would not adopt any specific terminology, for s 79A does not use it. However, because the right is an important one, I would not expect a jury to be dispensed with unless there was a factor having attributes to which some such description was appropriate." (Emphasis added) 46 Mr Downing has submitted that there is complexity in the medical issues in the case against the Service and the doctor which warrant the making of the order which he seeks. He has submitted that one of the difficulties is that the original x-rays are lost and that the doctors are compelled to opine with the benefit of hindsight what those x-rays might have shown. There is competing medical opinion about the state of pathology in the plaintiff's spinal area and a jury would be required to evaluate that evidence. Moreover, there is the competing medical evidence as to how the plaintiff ought to have been treated and whether he ought to have been required to undergo surgery. Then there is the associated question as to what would have been the outcome of such surgery. These factors in combination it was submitted amounted to such complexity as made it undesirable that this cause be heard by a jury. 47 Mr McGillicuddy rose to support that submission. 48 I indicated in the course of argument that it did not seem to me that there was anything out of the ordinary in the nature of the medical issues which would warrant an order that the jury be dispensed with, and, having had the opportunity of further reflection, I have not changed my mind. In my experience, medical issues of this complexity have frequently been determined by jurors in the past. Those medical issues are not such as require an order to be made to dispense with trial by jury so that justice be done between the parties. 49 Mr Harvey submitted that there was a risk that the jury might go astray in considering the issue of negligence in the case concerning the injury at school bearing in mind the extent of the plaintiff's injuries and his earlier susceptibility to injury. Mr Harvey submitted that the jury might be distracted by those considerations and, further, by the difference in the nature of the duty of care in the case against the school as compared with the case against the hospital and the doctor. 50 I do not accept that that is so. The case against the State concerning what happened in 1989 is not unduly complex. The jury would have to determine as the tribunal of fact whether the plaintiff was pushed and, if so, in what circumstances and, further, if there was a breach of duty in the failure to adequately supervise. I entertain no disquiet that the jury, duly instructed, may be ill-equipped to determine those issues. Nor do I consider that the jury duly instructed would be ill-equipped to assess the appropriate significance of the plaintiff's susceptibility to harm at that time. 51 Doubtless the trial judge will direct the jury not to be influenced by sympathy in making necessary findings, and it is not to be assumed that the jury would ignore such a direction and become distracted from its task because of the gravity of the plaintiff's disabilities. 52 In my opinion neither moving party has established a feature of sufficient weight to overcome the plaintiff's entitlement to trial by jury on the requisitions filed. 53 Accordingly, for the reasons above expressed, I make the following orders:

Webb v South Eastern Sydney Area Health Service & Anor; Webb v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Cases Cited (7)

Cited By (2)