Pederson v Northern NSW Local Health District [2020] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: Pederson v Northern NSW Local Health District [2020] NSWSC 741 Hearing dates: 12 June 2020 Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 20 Catchwords: CIVIL PROCEDURE – medical examinations – r 23.4 Uniform Civil Procedure Rules - whether order should be made for genetic testing – use of epidemiological evidence - whether the defendant should be able to explore possible epidemiological causes of the harm – interests of justice Legislation Cited: Uniform Civil Procedure Rules 2015 (NSW) r 23.4 Cases Cited: KF bnt RF v Royal Alexandra Hospital for Children [2010] NSWSC 891 Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Seltsam v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Category: Procedural and other rulings Parties: Luke Tyler Pederson by his tutor Amanda Sharon Pederson (Plaintiff) Northern NSW Local Health District (Defendant) Representation: Counsel: M. Cranitch SC with P. Woods (Plaintiff) L. Boyd (solicitor advocate) (Defendant)

Solicitors: Somerville Laundry Lomax Solicitors (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2012/388535

Judgment 1. By Notice of Motion filed on 25 February 2020, the defendant applies for an order under r 23.4 Uniform Civil Procedure Rules 2005 (NSW) for the medical examination of the plaintiff by way of, the taking of saliva samples for pathological testing for the purpose of genetic analysis. There is no doubt that the Court has power to order such an examination: Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 at [31] – [36] (Hodgson JA), (Allsop P and Tobias JA agreeing); see also KF bnt RF v Royal Alexandra Hospital for Children [2010] NSWSC 891. 2. The question is whether in the exercise of my discretion the orders sought should be made in the particular circumstances of the present case. The plaintiff is a 10 year old boy. He sues by his tutor, his mother, the defendant health service in negligence for injuries suffered during his birth on 14 December 2009. His birth was induced by artificial rupture of the membranes, but his delivery was delayed due to shoulder dystocia causing him to suffer hypoxia ischemia encephalopathy (HIE) as a result of which he has suffered a number of serious disabilities. For present purposes, the most significant is the alleged development of Autistic Syndrome Disorder (ASD), diagnosed when Luke was 6 years and 3 months of age (24 March 2016). It is clear from the occupational therapy assessment report of Ms Castle-Burton of 25 October 2018 and the Statement of Personal Injury Particulars filed on 11 February 2019 that several million dollars distributed amongst various heads of damage are claimed as being substantially referable to Luke's ASD. 3. The defendant has admitted breach of the duty of care it owed to Luke in two respects: first it failed to ensure that an obstetrician was present at the time of his delivery; and secondly it failed to manage his shoulder dystocia in a timely manner. It is not clear whether the plaintiff's legal representatives are content with these admissions. 4. What is clear is that medical causation of Luke's ASD will be a substantial issue at the trial. The defendant accepts that Luke suffers ASD but not its connection to its admitted breach of duty. It may also be that if Luke is successful on the causation issue other factors relevant to the aetiology of his ASD, if any, would have an impact on issues going to the quantum of damages: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1.