Breheny v Lachlan Health Service & Ors [2001] NSWSC 186

New South Wales Supreme Court

CITATION : Breheny v Lachlan Health Service & Ors [2001] NSWSC 186 FILE NUMBER(S) : SC 21200 of 1995 HEARING DATE(S) : 16/03/2001 JUDGMENT DATE : 21 March 2001

Christoper Breheny by his tutor Gary Breheny - Plaintiff PARTIES : Lachlan Health Service (formerly Lake Cargelligo Hospital) - 1st Defendant David John Cairncross - 2nd Defendant Gordon Vincent Oxenham - 3rd Defendant JUDGMENT OF : Bell J at 1

COUNSEL : Mr O'Keefe - Plaintiff Mr S Kalfas - 2nd and 3rd Defendants SOLICITORS : Hunt & Hunt - Plaintiff Lynn Boyd - 2nd and 3rd Defendants CATCHWORDS : Professional Negligence List - Summary dismissal - no reasonable cause of action disclosed - non service of any expert report or other evidence in support of particulars of negligence. LEGISLATION CITED : Supreme Court Rules 1970 CASES CITED : Rogers v Whitaker (1992) 175 CLR @ 479 DECISION : Proceedings against second and third defendants are dismissed generally.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

BELL J

Wednesday, 21 March, 2001

No 21200 of 1995 - Christopher BREHENY by his tutor Gary BREHENY v LACHLAN HEALTH SERVICE and ORS

JUDGMENT 1 HER HONOUR: The second and third defendants by Notice of Motion filed on 7 December 1998 seek an order that the claim brought by the plaintiff against each of them be struck out for want of prosecution. The power so to do is provided by Pt 33 r 6 of the Supreme Court Rules 1970 ("the SCR"). The motion was listed for hearing on 15 December 1998. On that occasion it was adjourned by consent to 26 February 1999. As at that date it appears that orders had been made for the administration of interrogatories and for the plaintiff to file a further amended statement of claim. In these circumstances the notice of motion was stood over generally with liberty to apply on seven days notice. 2 By letter dated 28 February 2001 the solicitor for the second and third defendants sought to have the motion listed for hearing on 9 March 2001 at a conference hearing. The matter came before me and I stood it over for hearing to 16 March 2001. 3 At the commencement of the hearing on 16 March Mr Kalfas, who appears on behalf of the second and third defendants, stated that although the motion was framed as one seeking to have the proceedings struck out for want of prosecution the defendants' principal complaint was that there was no evidence to support the particulars of negligence alleged against them. The defendants sought to move for orders dismissing the proceedings generally pursuant to Pt 13 r 5 of the SCR. It was not submitted that this change in stance took the plaintiff by surprise or occasioned any prejudice to him. 4 The plaintiff brings claims in negligence as against each of the three defendants arising out of the circumstances of his birth. His mother while a patient at the Lake Cargellico Hospital was injected with a drug named syntometrine during labour. This is said to have resulted in tonic contractions of the uterus and foetal distress. It is contended that the plaintiff sustained brain damage before and/or after his birth and that he suffers from severe dementia and intellectual disability. 5 Proceedings against the Lake Cargellico Hospital (now the Lachlan Health Service) were commenced by Statement of Claim No 21200 of 1995. Separate proceedings were filed on 8 December 1995 against the second and third defendants (No 21286 of 1995). The two proceedings were consolidated by order of Registrar Irwin made on 8 May 1997. 6 The second and third defendants maintain that the plaintiff has failed to serve any expert evidence in support of any of the alleged particulars of negligence pleaded against them. It is conceded that expert evidence is not a prerequisite for bringing a successful claim in medical negligence; Rogers v Whitaker (1992) 175 CLR 479. However, as a practical matter this being a treatment (as distinct from advice) case, the second and third defendants contend that the absence of any expert evidence is a telling pointer to the absence of any reasonable basis for the claim now brought. Further, they submit that there is no other evidence from which an inference of negligence in any of the particulars alleged against them might be drawn. 7 I am invited to infer that the plaintiff's failure, in the face of the numerous directions of the Court, to elicit any expert opinion critical of the conduct of either the second or third defendant leads to the view that no reasonable basis exists for the allegations of negligence pleaded against them. In this respect Mr Kalfas noted that the plaintiff has been directed by the Court on five separate occasions to serve expert evidence and has failed to do so in the case he brings against the second and third defendants. 8 Mr Kalfas called on a Notice to Produce which, relevantly, required the plaintiff to produce the following documents on the hearing of the motion: · all correspondence between the plaintiff's solicitors and Dr Farnsworth, · report of Dr Farnsworth dated 23 February 1999.