Wilson and Pagett v Murrumbidgee Local Health District [2023] NSWSC 1213

Supreme Court New South Wales

Medium Neutral Citation: Wilson and Pagett v Murrumbidgee Local Health District [2023] NSWSC 1213 Hearing dates: 06 October 2023 Date of orders: 06 October 2023 Decision date: 06 October 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The plaintiff's motion is dismissed. (2) List the matter for hearing on all issues commencing on 4 November 2024 for a period of 10 days. Catchwords: CIVIL PROCEDURE – motion for issues relating to liability be determined separately from issues relating to quantum pursuant to r 28.2 Uniform Civil Practice Rules 2005 (NSW) – where plaintiff is 10 years old and has suffered catastrophic injury – framing of order for a separate question – where damages issues not finalised – order for separate question refused – where alternative course available Legislation Cited: Uniform Civil Practice Rules 2005 (NSW) Category: Procedural rulings Parties: A Wilson (Plaintiff) L Pagett (Plaintiff) K Wilson (Plaintiff) P Pagett (Plaintiff) Murrumbidgee Local Health District (Defendant) Representation: Counsel: Mr M Cranitch SC with Mr D Ronzani (Plaintiffs) Mr J Downing SC (Defendant)

Solicitors: Blumers (Plaintiffs) Minter Ellison (Defendant) File Number(s): 2022/68249; 2022/161469; 2022/161515; 2022/161532 Publication restriction: None

REVISED EX TEMPORE JUDGMENT 1. Pursuant to a motion filed on 8 June 2023 each of the plaintiffs seeks an order under r 28.2 Uniform Civil Practice Rules 2005 (NSW) that "all issues as to liability be determined separately from, and in advance of, all issues as to quantum". On the hearing of the motion, Mr Cranitch of Senior Counsel appeared with Mr Ronzani for the plaintiff. Mr Downing of Senior Counsel appeared for the defendant. 2. As set out in the Statement of Claim filed on 9 March 2022, the primary plaintiff, Ayla Wilson, seeks damages from the defendant on the basis that at the time of her birth she suffered substantial injuries as a result of the negligence of the defendant. The plaintiff is now ten. She suffers from a spastic quadriplegic form of cerebral palsy. Her condition is such that she suffers from intellectual disability, limited vision, and a range of other disabilities which would require her to be cared for and supervised permanently, continuously and for the rest of her life. 3. Indeed, the expert evidence in the case is to the effect that she will require somewhere between 24 and 30 hours of care per day for the rest of her life from a range of health professionals. It is only necessary to say that the conditions for which the primary plaintiff suffers are of the most severe and most extreme type. She is being cared for primarily by her mother and grandparents who, as always in these types of cases, are faced with the quite significant task of caring for her using their all of their energies to do so to the best of their abilities. 4. After commencement of the proceedings the defendant filed a defence denying breach of duty of care and causation. However, subsequent to the filing of this motion, the defendant filed an amended defence admitting breach of duty of care but asserting that the injuries or disabilities of which the plaintiff suffers were not caused by any breach of duty of care on the part of the defendant. 5. The plaintiff's case is that the conditions from which she suffers resulted from poor care during the birthing process. There is ample and significant evidence to that effect, hence the defendant's admission of breach of duty of care. However, there is at least some evidence that the plaintiff's mother was suffering from gestational diabetes and that that condition is known to increase the likelihood of intrauterine foetal hypoxia, that is increase the risk that the brain injury suffered by the plaintiff happened prior to the birthing process. 6. The defendant is not relying on any of its own expert evidence on negligence or causation. This issue is raised by one of the plaintiff's experts, Professor O'Connor. On the other hand, the plaintiff's expert paediatric neurologist, Professor Harbord, seems to discount it. 7. The defendant says that it is entitled to put causation in issue and that remains to be determined by the Court in due course, along with the significant damages issues which will arise in these proceedings. 8. Despite the admission of breach, the plaintiff persists with the motion on the basis that the damages issues are not ready to be determined. Mr Cranitch outlines three issues of substance which he says means that the damages issues are not ready to be determined, being that: 1. the plaintiff requires further surgery and there is a substantial risk of complications in respect of that surgery, in particular the surgery for the scoliosis, which could lead to deterioration in the condition and the need for further surgery and substantial other needs; 2. the plaintiff has not yet commenced percutaneous endoscopic gastrostomy (PEG) feeding and the PEG feeding could have a substantial impact on life expectancy; and 3. generally, the medical complications which could arise are uncertain and the plaintiff will not be in a position to have damages properly assessed perhaps until she turns 15. 1. As such, I assume that the plaintiff's tutor has instructed those representing the plaintiff that she would prefer to have all issues relating to liability, now limited to causation, determined and then, if successful, make applications for interim payments until such time as damages can be assessed. That could be the only course which the family is contemplating because, at the present time, the plaintiff is being cared for by her family, living in unsuitable accommodation, without really receiving the level of professional care which the experts say she requires (despite the family's efforts). 2. The defendant's position on the motion is that, contrary to the plaintiff's assertions, this matter is ready for hearing on all issues. Mr Downing carefully took me through the evidence of both the plaintiff and the defendant, including reports of the expert paediatric neurologist, rehabilitation specialist and occupational therapist. The defendant says that there is no evidence that would support any assertion that the plaintiff's condition is likely to deteriorate in the next few years, and further, that the level of future treatment or care which she may need has already been factored in by the experts.