New South Wales Supreme Court CITATION : Wilkins v Bambach & Ors [2002] NSWSC 91 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20242/01 HEARING DATE(S) : 7 February 2002 JUDGMENT DATE : 26 February 2002 Geoffrey Wilkins (plaintiff) Christopher Bambach (1st defendant) Robert Woods (2nd defendant) Northern Sydney Area Health Service (3rd defendant) David Robert Bell (4th defendant) PARTIES : Rodney James Thomas (5th defendant) Carol Lynn Macleod t/as West Pymble Medical Centre (6th defendant) Carol Elion (7th defendant) Joodie Holdings No2 Pty Ltd t/as St Ives Medical Centre (8th defendant) Geoffrey Au (9th defendant) Australasion Conference Association Ltd t/as Sydney Adventist Hospital (10th defendant) JUDGMENT OF : Newman AJ at 1 COUNSEL : M.B. Williams (plaintiff) G.B. Evans (1st, 2nd, 4th, 5th, 6th & 7th defendants) Charlton Shearman Medical Lawyers (plaintiff) Tress Cocks & Maddox (1st, 2nd, 4th, 5th, 6th & 7th defendants) SOLICITORS : Phillips Fox (3rd defendant) Colin Bigger & Paisley (8th defendant) Clayton Utz (9th defendant) Ebsworth and Ebsworth (10th defendant) CATCHWORDS : Supreme Court - discretion to dispense with trial by jury - what factors are relevant to the exercise of the discretion whether considerations of a universal character relevant to jury trial may be relied on - whether the factor relied on must be significant and specific. LEGISLATION CITED : Supreme Court Act 1970 s89 CASES CITED : Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298 DECISION : Order: Trial will be determined by a judge alone and the jury requisitioned is dispensed with. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN AJ Tuesday 26 February 2002 20242/01 WILKINS v BAMBACH & ORS JUDGMENT 1 HIS HONOUR: This is an application brought pursuant to s89(1) of the Supreme Court Act 1970 that the trial of this matter be heard without a jury. The plaintiff in the matter has requisitioned a jury and should this application fail the determination of all issues of fact in the trial will be determined by a jury. 2 The hearing of the motion counsel appeared for the first, second, fourth, fifth, sixth and seventh defendants in support of the motion and announced that the third, ninth and tenth defendants in the matter while not appearing supported the application brought by the other defendants. I should add that the statement of claim nominates ten defendants, however, the plaintiff has discontinued against the sixth and eighth defendants. 3 The plaintiff's claim is framed as one usually described as involving medical negligence. The first, second, fourth, fifth, seventh and ninth defendants are medical practitioners and the third and tenth defendants are the administrators of hospitals. The claim arises as a result of advice and treatment the plaintiff received following a splenectomy which constituted part of his treatment for a malady known as Nodular Sclerosing Hodgkin's disease. 4 In his statement of claim the plaintiff commences relevantly by alleging that the first defendant performed a splenectomy upon him at the Royal North Shore Hospital on 17 June 1982. While the statement of claim does not say so it is apparent from the history contained in a report furnished by Professor Wilson, a Clinical Microbiologist, that prior to the first defendant carrying out that procedure the plaintiff had been under the care of the second defendant, an oncologist. The statement of claim alleges that the plaintiff remained under the care of the second defendant until 3 March 1987 when his care was transferred to the fourth defendant, ie, care of an oncological type. It is alleged that between 1977 and 29 June 1999 the plaintiff was under the care of the fifth defendant in his capacity as a general practitioner. As against the seventh it is alleged that she treated the plaintiff in the capacity as a general practitioner after 1 July 1996. As against the ninth defendant it is alleged that he treated the plaintiff again in the capacity of a general practitioner after 6 January 1998. As against the tenth defendant it is alleged that the plaintiff was a patient at that defendant's hospital from 12 August 1999. 5 In relation to the tenth defendant it is alleged that following his admission to that defendant's hospital the plaintiff was ultimately diagnosed as suffering from acute pneumococcal septicemia which condition in turn led to the plaintiff contracting a condition of widespread gangrene which ultimately led to amputation being performed to both the plaintiff's arms and both of his legs. 6 The plaintiff's cases against the first, second, third, fourth and fifth defendants have one feature in common. That is an allegation that the defendants in their various capacities ranging from surgeon to general practitioner failed to advise the plaintiff that he ought to be vaccinated against complications which could arise as a consequence of him being a splenetic. As against the seventh and ninth defendant the allegation differs. Essentially the allegation there arising is that the defendants in their capacity as general practitioners failed to either stress the importance of the plaintiff being vaccinated against the said complications or failing to following through such advice given to the plaintiff. The allegation against the tenth defendant differ again. Those allegations may be summarised by saying that it is the plaintiff's case that the tenth defendant failed to properly manage and supervise its treatment of the plaintiff. 7 Those complications are identified by Dr Wilson as being of a severe bacteraemic type. It seems that the bacterial infection which the plaintiff suffered which led to him being subjected to radical surgery is known as an overwhelming or fulminant pneumococcal septicaemia. This, as I understand the reports furnished, is a severe bacteraemic illness. 8 In his report Dr Wilson expresses a view that physicians and surgeons involved in the removal of a spleen would have been expected to have known of the risk of a person subject to such surgery contracting such an illness. However, he qualified his remarks in relation to general practitioners in terms of knowledge they might be expected to have of this complication before the mid-90s. In a further report from a Professor Usherwood, the Professor of General Practice at the University of Sydney, an opinion is expressed that general practitioners would not have been aware of this risk of infection in 1982, but in May 1995 a number of publications with which general practitioners ought to have been familiar made reference to the existence of the subject risk. It follows that the standard of care expected of general practitioners in terms of knowledge they might be expected to have, differs in terms of the time when they should have had that knowledge from that of specialists. Accordingly, at trial a jury would have to be instructed with care by the trial judge as to the difference between knowledge expected to be held by specialists as against general practitioners at various times during the times when the plaintiff was under the care of such practitioners. 9 It may be seen from the narration of the allegations made against the other defendants that those allegations are different in nature from those based upon knowledge which practitioners ought to have acquired. As I have said against the seventh and ninth defendants the allegations differ markedly. Again the allegations made against the tenth defendant differ both in form and substance to those made against any other defendant. Again in directing the jury the trial judge would need to take great care to differentiate between the different standards of care which are alleged against a variety of defendants. 10 I should add that the pleadings in the matter are at an early stage. As yet no cross-claims have been brought between the defendants. In a case such as this it would not be surprising that if in due course such cross-claims were not lodged. 11 It is plain from the above narration that this case would involve a very complicated trial. Complicated both factually and legally. Legally by dint of the fact that different standards of care would be alleged relation to different defendants. This is particularly so in relation to the allegations made in relation to the individual medical practitioners. Not surprisingly it was put on behalf of the defendants that this trial would take much longer before a tribunal constituted by a judge and jury as against a trial before a judge alone. The estimate given on behalf of the defendants as to the length of the trial before a judge alone was 15 days. Assuming this to be correct it would not be surprising that, if this litigation were conducted before a judge and jury, it could last two or three times as long as it would before a judge alone. Essentially the defendants argued that if this matter were to proceed before a judge and jury the complex directions which would be required from the trial judge could result in a chance that the trial could miscarry. Secondly it was put that for this trial to proceed before a judge and jury would result in it going for an inordinate length of time which would be unjust to the defendants. In other words the defendants contended that the nature of the trial would be such that the complex nature of the directions which would be required to be given could lead to a chance that justice would not be done. Coupled with this submission was a submission that the length of trial before a judge and jury would be unjust to the defendants. 12 Section 89(1) is in the following terms: In any proceedings on a common law claim (except proceedings to which section 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury. 13 In Pambula District Hospital v Herriman (1988) 14 NSWLR 387 the Court of Appeal stressed that the discretionary power conferred by s89(1) be exercised according to the circumstances of each individual case. Criteria should not be applied which are of general applications to all jury trials without consideration being given to the application of those criteria to the particular circumstances of the case. 14 In Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298 the Court of Appeal dealt with the discretion contained in s79A of the District Court Act which is in similar terms to s89 of the Supreme Court Act. Davies AJA (with whom Spigelman CJ agreed) made this observation at para 85:- A jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial. This will not occur unless there is a factor which transcends the usual problems encountered with jury trials. The complexity of the particular case, or a need for expedition, or the impracticability of bringing a witness or witnesses to Sydney, and kike matters, may provide such a factor; but the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside. In his reasons for judgment in this case, the Chief Justice has referred to terminology such as "unusual feature", "significant and special burden", "singular circumstances" and specific difficulties". I would not adopt any specific terminology, for s79A does not use it. However, because the right is an important one, I would not expect a jury to be dispensed with unless there was a factor having attributes to which some such description was appropriate. 15 The question must then be posed: What factor or factors exist here which transcend the usual problems with jury trials? The fact that the trial before a jury will be much lengthier than one before a judge alone is not such a factor. Neither would the fact that there are a number of parties in the matter. However, I am of the view that the complex nature of the varying standards of care applicable to the variety of medical practitioners arising over the many years involved together with the different allegations of both duty and breach of duty alleged against the tenth defendant create a factor which in my view does transcend problems usually encountered in jury trials. In my view this so transcends the usual problems encountered in jury trials that the chance of the miscarriage of justice would be considerably enhanced if this trial were held before a judge and jury instead of before a judge alone. Thus, I am of the view that the application must succeed. Accordingly, the order of the Court will be that this trial will be determined by a judge alone and the jury requisitioned is dispensed with. I will hear arguments on costs on delivery of these reasons. oOo Last Modified: 03/07/2002 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.