Athena Kennedy v Deepika Malhotra [2023] NSWSC 1638

Supreme Court New South Wales

Medium Neutral Citation: Athena Kennedy v Deepika Malhotra [2023] NSWSC 1638 Hearing dates: 15 December 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) Notice of motion seeking expedition granted. (2) Matter listed for hearing from 2 to 5 April 2024. (3) Matter listed before Cavanagh J at 9:30am on 8 February 2024 for case management orders. Catchwords: PRACTICE & PROCEDURE – professional negligence – medical negligence – notice of motion seeking expedition of hearing – plaintiff suffering from severe form of cancer – plaintiff may not survive delays – plaintiff may not be in a position properly to participate in the proceedings – time pressures on parties – balancing incommensurate factors – no question of principle Category: Procedural rulings Parties: Athena Kennedy (Plaintiff) Deepika Malhotra (Defendant) Representation: Counsel: Mr J Thompson (Plaintiff)

Solicitors: BPC Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2023/00440199 Publication restriction: Nil

JUDGMENT 1. The plaintiff, Athena Kennedy, filed a statement of claim in this Court on 5 December 2023 alleging that her general practitioner, Dr Malhotra, was negligent in her treatment of her, and the result of that was the failure to pick up on what has become, according to what I would think is indisputable expert evidence, a very pernicious form of cervical cancer. The full details are set out in the statement of claim and essentially involve a failure to advise the patient to get a pap smear and perhaps other investigative procedures resulting in a failure to pick up at an early time what might be considered to be precancerous signs, or the cancer itself. 2. The plaintiff now brings a notice of motion seeking expedition of the hearing essentially as soon as the Court can possibly hear it. The matter came before me in the duty list yesterday and it was adjourned until today. I am grateful to the lawyers for making themselves available again today. Each has filed written submissions, and the plaintiff at least has had the opportunity to provide the Court with a number of affidavits supporting the application for an expedited hearing. 3. Again, at the risk of oversimplifying, the plaintiff's application is based on two related things. The first is the plaintiff's life expectancy as assessed by her treating oncologist, Associate Professor Beale, is just 12 months. Further, the Associate Professor expresses the opinion that her condition could deteriorate at any time which would make her capacity to take part in the court case very difficult. He also refers to the significant pain that she would be expected to experience over the coming months. 4. Stated in that way, the application obviously is a compelling one and the Court clearly has considerable sympathy for the position of the plaintiff. Against that, the defendant has only in the last month become aware of the claim. There has been difficulty in obtaining relevant medical records. The plaintiff says, "well, we can't find them", but that does not mean that the defendant would be similarly unable to find them. It is put on behalf of the defendant that it is not really fair to expect them to respond to a claim such as this within the timeframe proposed by the plaintiff. 5. The plaintiff has, as it was just put in reply submissions and in response to my question as to why the statement of claim was not brought earlier, said it has taken the time to put its ducks in a row. The reality is that the defendant has not had that time, so the Court is confronted with incomparable matters, or incommensurate matters, to weigh up to come to a just and fair result. On the one hand, there is a plaintiff suffering from a severe form of cancer who may not survive the delays that sometimes attend such matters or may not be in a position to properly participate in the proceedings. Against that the reality is that the defendant is entitled to prepare its defence to what are serious allegations of neglect levelled against her, and further to consider the somewhat complex medical issues raised in a number of reports presented on the plaintiff's behalf. 6. The Court is in a position to offer the parties, by which I really mean the plaintiff, relatively early hearing dates. They would be on the 26 to 29 February 2024. I accept the submission from the defendant that it would create real prejudice in the defendant, as they would not be able to meet that timeline and the Court would almost certainly be confronted early next year with an application to vacate the hearing dates. The next available dates, as I am advised by the registrar, are 11 and 14 March 2024, and I am inclined to accept that would have the same problems and risks associated with it. The next available dates are 2 through to 5 April 2024. 7. Balancing those incommensurate things, I am satisfied it is appropriate to list the matter for hearing at that time, that is to say from 2 to 5 April which is a four-day estimate. 8. The defendant's preferred position was to have the matter put before the professional negligence list judge, as he has come to be known, but I know him as Cavanagh J, and I will do that. But in the meantime, I am going to list the matter for hearing so that there is incentive on both sides to get the case ready for hearing. 9. If I thought it was practical, I would have gone for an earlier date, but I really do not think it is, and there would be real prejudice, not just presumptive prejudice to the defendant. Obviously if there is real prejudice, if for some reason the matter cannot be prepared or if the plaintiff or her lawyers dilly-dally in the meantime, an application to vacate that hearing date could be made to Cavanagh J when the matter comes before him. 10. What I propose to do is to set a timetable or make case management orders for the matter before his Honour on Thursday 8 February at 9.30am, when his Honour is available to make further directions about the future conduct of the proceedings. 11. Accordingly, I make the following orders: 1. Notice of motion seeking expedition granted. 2. Matter listed for hearing from 2 to 5 April 2024. 3. Matter listed before Cavanagh J at 9:30am on 8 February 2024 for case management orders.