Zraika v Walsh

The facts

1. As this application is interlocutory, many of the facts were the subject of submission rather than evidence. The narrative set out below is intended to be no more than a recitation of the salient facts as I understand them to be for the purposes of determining the defendants' application. They do not otherwise constitute findings.

The circumstances in which the plaintiff's condition emerged

1. On 16 November 2002, when the plaintiff's mother was about 24 weeks' pregnant, she was a passenger in a Ford Laser driven by her husband, Ali Zraika, when it was involved in a collision with a Holden utility driven by the first defendant and owned by the second defendant. At that time there was no suggestion that either she or the foetus had sustained serious injury as a result of the impact.
2. At 32 weeks gestation, a routine ultrasound showed that the head circumference of the foetus may not have been increasing as expected. There is an issue concerning the reliability of that report.
3. The plaintiff was born on 6 March 2003. At birth his head circumference was regarded as normal. The Guthrie sample taken shortly after his birth was not tested for CMV. Not long after his birth the circumference of his head was found to have reduced by about 3cms. About a fortnight later, an ultrasound revealed an abnormality amounting to microcephaly, which means that his head was significantly smaller than the heads of other children of the same age and sex. As a consequence, he suffers from profound developmental delay.
4. On 25 March 2003 the plaintiff's mother was tested for congenital infections including CMV IgG (which was detected) and IgM (which was not detected). The laboratory interpreted these results as showing past exposure to CMV but as not indicating recent acute infection with CMV. The plaintiff was tested for CMV on 12 August 2003. The result was negative.

The proceedings

1. The plaintiff commenced proceedings on 17 July 2012 for damages in negligence against the first and second defendants as well as against the Roads and Maritime Services and the Bankstown City Council. The statement of claim was amended to add the plaintiff's father, the driver of the Ford Laser, as a party. On 12 December 2013 Schmidt J ordered that there be separate hearings on the issue of liability and causation. The separate hearing on liability was heard and determined by Campbell J: Zraika v Walsh [2015] NSWSC 485. His Honour determined that all defendants apart from the plaintiff's father were liable in negligence for the collision.
2. The matter has come before the Court for directions on several occasions. On 10 June 2014 the defendants were directed to serve their expert reports by 3 October 2014.
3. On 16 December 2014 Davies J vacated the hearing date of 2 March 2015 and listed the hearing of the issues relating to causation and damage to commence on 6 July 2015 for ten days. The earlier hearing date was vacated so that the plaintiff could be genetically tested to ascertain the cause of his disability. I am informed that such testing did not advance the matter.
4. On 27 February 2015 Davies J directed the service of further evidence relating to quantum. No directions were made on that occasion that displaced the earlier order for service made on 10 June 2014 or extended time for compliance with that order.

The expert evidence on causation

1. The causes postulated for the plaintiff's developmental delay include: 1. Trauma as a result of the collision on 16 November 2002; 2. Hypoxia at birth through a difficult delivery; and 3. Unknown developmental causes, including antenatal viral infection, such as CMV.
2. If the plaintiff establishes cause (1) to the requisite standard, he will be entitled to substantial damages from the defendants. Cause (3) is accepted as a possible cause. The defendants have a clear forensic interest in establishing (3), since it would tend to exclude (1) as a cause, or make it less likely that it could be shown as the, or a, probable cause.
3. The plaintiff has served an expert report in which a paediatric neurologist opined that the plaintiff's condition was probably caused by trauma sustained in the collision. The plaintiff has also served a report of Dr Rosenbloom, paediatric neurologist, dated 28 October 2008 in which he accepted the possibility of hypothesis (3) above in the following terms: "It is also possible that quite coincidentally to the circumstances of this accident that this child has sustained damage due for example to a congenital viral infection such as Cytomegalovirus."
4. The defendant has served expert reports on the question of causation including a report dated 9 September 2014 of Professor Alastair MacLennan who opined: There are many probable antenatal causes of white matter damage. There is increasing understanding that some of these causes include congenital anomalies and some are damage acquired following perinatal infection i.e. maternal infection that affects the fetus and its brain during pregnancy and/or labour or in the neonatal period. These viral or bacterial infections may be relatively silent during pregnancy and not recognised clinically at the time. In a study from our group seeking viral DNA in new born stored blood spots we found a significant increased prevalence of Cytomegalovirus and Epstein-Barr virus (glandular fever) in blood from cerebral palsy cases compared to controls without cerebral palsy. [Emphasis in original.]
5. The defendants' solicitors also obtained a report dated 4 November 2014 from Dr Ken Maclean, a clinical geneticist, in which he opined: "The laboratory evidence and brain imaging findings do not indicate congenital CMV or other congenital infection as the likely cause of the condition in the plaintiff."
6. In December 2014 Dr McLean suggested to the defendants' solicitors that they obtain the opinion of an expert in infectious diseases to comment on the risk of obtaining false negative results in peri- and post-natal screening. The defendants' solicitors instructed Professor William Rawlinson, senior medical virologist, by letter dated 12 February 2015 and sent documents for him to review. I am informed that this was the earliest he was available as he had been on extended leave over Christmas.
7. Professor Rawlinson prepared a report dated 14 March 2015 in which he addressed the risk of false negatives in serological screening. He opined that: "Diagnosis of congenital CMV is best made using urine, saliva and blood taken within three weeks of birth. Testing after this period is less sensitive (that is does not detect all cases) and less specific (that is detects some children infected who were not infected at birth, due to postnatal acquisition of infection) [Howard 2008]. More recent testing methods using saliva testing have better rates of detection of infants with congenital CMV [Boppana 2011]. Testing using molecular tests on the Neonatal blood Screening Card (NBSC, Guthrie's card or dried blood spot) if positive is indicative of infection during pregnancy with congenial CMV infection [Howard 2009], although such testing can miss many infected infants [Boppana 2010]. This means that a positive test is clearly diagnostic of congenital CMV if undertaken properly in a laboratory setting, but that a negative test does not rule out congenital CMV. Congenital CMV is the commonest infectious cause of severe congenital illness (such as neurodevelopmental delay, intracranial calcification, hearing loss) in Australia [Munro 2005]. Postnatal CMV may also cause disease in the infant, although this is usually less severe [Trincado 2001]. The number of infected infants is significant [Cannon 2014] and the type of disease in affected infants may be more severe when infection occurs early in the pregnancy, particularly during the first trimester before 134 wga [Cannon 2014; Van Zuylen 2015; Maxim 2009]." [Emphasis added.]
8. Professor Rawlinson opined that on the basis of the information provided, the plaintiff had not been investigated sufficiently for congenital CMV and other congenital infections. For unknown reasons, his report, though dated 14 March 2015, was not received by the defendants' solicitors until early May 2015.
9. In the meantime, by letter dated 18 March 2015 the defendants' solicitors had sought the plaintiff's solicitors' consent to the testing of the Guthrie sample for congenital infections and conditions. The plaintiff's solicitors did not respond to this letter. As I understand it, there was no discussion between the parties' respective legal representatives either as to the reason for the defendants' application or the basis of the plaintiff's opposition to it. This is regrettable since the lack of discussion contributed to the present time constraints, thereby making it more likely that the principal basis of the plaintiff's opposition to the test, that it would delay the matter and have a material effect on the hearing date, would come to pass.
10. On 24 March 2015 the defendants' solicitors contacted the Hospital, which confirmed that it retained the plaintiff's Guthrie sample and could test it for CMV and obtain the results within 14 days.
11. The defendants' solicitors sent Professor Rawlinson a further letter on 2 April 2015 and foreshadowed that an application would be made for the Guthrie test, if the consent of the plaintiff was not forthcoming.
12. The plaintiff supported his opposition to the order sought in the notice of motion with a report of Dr Harbord dated 24 April 2015 which addressed the tests performed on the plaintiff and his mother and concluded: "In summary these tests showed conclusively that neither Sharif's mother nor Sharif was exposed to the cytomegalovirus during the pregnancy. I therefore do not consider there is any utility in performing further testing for CMV on Sharif's Guthrie card."

Whether the order ought be made

1. Whether the risk of CMV infection ensued and caused the plaintiff's condition is plainly relevant to the principal remaining issue in the proceedings. Although the plaintiff bears the onus on causation on the balance of probabilities (s 5E of the Civil Liability Act 2005 (NSW)), the evidence would appear to provide a basis for the hypothesis that trauma was at least a possible cause. The evidence of at least one expert elevates the prospect to a likelihood. Although the question of causation is a legal one and not to be determined by the expert evidence alone (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [137] per Spigelman CJ), such evidence is highly significant in the present case.
2. The proposed test of the Guthrie sample is likely to be more probative than other samples already tested, for the reasons given in Professor Rawlinson's report. If the test is negative, it may exclude CMV altogether; if positive, it provides some support for hypothesis (3) set out above, which would assist the defendants' case.
3. But for the timing of the application, the matters in favour of making the order would be overwhelming. The gravamen of the plaintiff's opposition is that the making of the order could jeopardise the hearing date and add to the costs of the hearing. Moreover, Mr Higgs SC, who appeared with Mr Boyd on behalf of the plaintiff, submitted that it was not possible to predict how long the plaintiff would need to respond adequately to new evidence since his solicitors would almost inevitably need to identify and retain an expert virologist. Because of the likely commitments of persons of suitable expertise, it would, Mr Higgs submitted, be almost inevitable that the hearing date of 6 July 2015 would be lost. Moreover, expert conclaves which have already taken place might need to be reconvened with Professor Rawlinson and a further expert retained by the plaintiff.
4. Mr Higgs relied on Aon Risk Services Australia Ltd v Australian National University [2009] HCA; 239 CLR 175 (Aon) and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 (Expense Reduction). In Expense Reduction, the High Court applied Aon in the context of litigation in New South Wales to which the Civil Procedure Act 2005 (NSW) (the Act) applied. Mr Higgs submitted that, unlike a Royal Commission, adversarial civil litigation is to be conducted by reference to directions made for its orderly and efficient conduct. He contended that a hearing date (particularly where one has already been given and vacated) ought not be disrupted even where there is the prospect of potentially significant evidence becoming available. Mr Higgs emphasised Dr Harbord's opinion that testing of the Guthrie sample would be futile in light of the results of other tests.
5. Mr Butcher, who appeared on behalf of the defendants, submitted that Professor Rawlinson's evidence suggested that the test was not futile in that, because of the time at which the Guthrie sample was taken, the results of testing for CMV are likely to be more probative than later tests. He contended that the interests of justice favoured the order being made. He submitted that the question of causation was complex and that the delay had been fully explained. He also pointed to the lack of response by the plaintiff's solicitors to his instructing solicitors' letter of 18 March 2015.
6. Section 58(2) of the Act makes the matters referred to in s 56 and s 57 mandatory relevant considerations for the purposes of determining the dictates of justice: see also Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36]-[47].
7. The matters which I am obliged to take into account under s 57 are listed in s 57(1)(a) - (d). They relate to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings. All but the first matter weigh heavily in the balance against the making of the order. However, because of the importance of the question of causation and the potential probative value of the evidence sought to be obtained as a result of the order (which cannot be obtained without such an order, the plaintiff's consent not having been forthcoming), I consider that the "just" determination of the proceedings tends to favour the making of the order.
8. The matters which I may, as distinct from must, take into account, include the degree of difficulty or complexity to which the issues in the proceedings give rise: s 58(2)(b)(i) of the Act. I am satisfied that the identification of a cause of the plaintiff's condition is both difficult and complex and has involved consideration by different experts with various sub-specialities. Although there is no onus on the defendants to establish that the plaintiff's condition was caused by something other than the collision, their forensic prospects would be substantially improved were they able to do so.
9. The degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activity is also a relevant matter: s 58(2)(b)(ii). Although the hearing date has already been vacated, this does not seem to indicate anything other than a conscientious attempt by the defendants' solicitors to investigate reasonable avenues to identify the cause of the plaintiff's condition and explain how it came to pass.
10. The degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective party is also relevant: s 58(2)(b)(iii). The evidence establishes that the impetus for this forensic inquiry came from a suggestion from Dr McLean, an expert retained by the defendants' solicitors. As soon as the suggestion was made the defendants' solicitors sought to investigate it and to obtain the plaintiff's solicitors' consent to the test being undertaken. I regard the delay as having been fully and satisfactorily explained.
11. Another matter which is germane to the exercise of my discretion is the use that any party has made or could have made of any opportunity available to the party in the course of the proceedings: s58(2)(b)(v). The defendants sought the plaintiff's consent to the test being undertaken in March 2015, before they received the report of Professor Rawlinson. Had consent been given at that time, the test could have been done some time ago when the hearing date was not as close. This is not to say that the plaintiff's' solicitors were not entitled to resist the application on the grounds that the time for the defendants to put on their expert evidence had long past but, had they made their position clear immediately, it may well have been that the motion could have been dealt with sooner. It was, of course, open to the defendants' solicitors to ascertain the position by contacting the plaintiff's solicitors again to obtain their response.
12. Although there is a risk that the hearing date will be jeopardised if the test is undertaken and comes back positive, there is also a prospect that the results of the test will be negative. This may be to the plaintiff's advantage and would not jeopardise the hearing date. This matter also weighs in favour of the order being made. It is undesirable that significant questions of causation be decided without evidence which might enable the issues to be determined with greater certainty.
13. Section 56 identifies the overriding purpose of the Act and UCPR as being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". I do not consider that it would be just for the defendants to be denied the opportunity of at least ascertaining the result of a test of the Guthrie sample. Although if the test is positive it may be necessary to adjourn the proceedings to permit the plaintiff time to investigate its significance and qualify a further expert, sight ought not be lost of the importance of a significant matter being decided on the whole of the relevant evidence. Although the consequences of making the order would be neither quick nor cheap if the proceedings were delayed, the consequences of not making the order would be that a possibly significant forensic avenue remains unexplored and the Court would be left to determine an important question in the absence of evidence which might be of paramount importance.
14. The Supreme Court Act 1970 (NSW) contemplates, by s 75A(7) and (8), that fresh evidence can be taken into account on appeal, albeit it only on "special grounds" if the evidence does not relate to matters after the hearing. I regard these provisions as an indication of the concern that factual issues be determined by reference to probative evidence. The results of the retesting of the Guthrie sample may turn out to be both "highly probative" (in that they could well make a difference to the result) and "credible" (being two of the three tests for "special grounds" before fresh evidence can be adduced on appeal: Atkins v National Australia Bank (1994) 34 NSWLR 155 at 160 per Clarke JA). In these circumstances it would not be consistent with justice for the defendants to be deprived of the opportunity to have this done when there is nothing to suggest that their solicitors were not acting with reasonable diligence and, indeed, much evidence to show that they have acted with speed and diligence to try to get this evidence so that it is available at the hearing. It is obviously preferable that such evidence be available to be weighed with all other evidence at the trial.
15. Section 59 of the Act provides that in any proceeding the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceeding and its final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case. It is a matter of speculation what the results of the test proposed by the defendants will be. It is by no means inevitable that any party will apply for the hearing date to be vacated once the results of the testing of the Guthrie sample are known. It is not necessary to repeat what I have said above, beyond adding that I consider that it is necessary for the fair and just determination of the issues in dispute to permit the defendants to have the Guthrie sample retested.
16. On balance I am persuaded that the defendants ought be permitted to have the Guthrie sample retested. This does not amount to a decision that the hearing date ought be vacated, since the need for any such application has not yet arisen.

Orders

1. I make the following orders: 1. Direct the plaintiff, by his next friend Halima Zraika, to authorise the testing of the blood taken from him for the Guthrie test by the Newborn Screening Department at the Children's Hospital at Westmead for pre and post- natal congenital infections and conditions including Cytomegalovirus.

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: 28 May 2015