Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164

New South Wales Supreme Court

CITATION : Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164 CURRENT JURISDICTION: Common Law Division Professional Negligence List FILE NUMBER(S) : SC 20408/97 HEARING DATE(S) : 1 March 2002 JUDGMENT DATE : 15 March 2002

Rajko Spasovic (First Plaintiff) PARTIES : Kosovka Spasovic (Second Plaintiff) Sydney Adventist Hospital (First Defendant) Dr Roderick Seymour Brooks (Second Defendant) JUDGMENT OF : Studdert J

I.F. Butcher (Plaintiffs) COUNSEL : M. Haire (First Defendant) F.C. Murphy (Second Defendant) Terence Stern (Plaintiffs) SOLICITORS : Ebsworth & Ebsworth (First Defendant) Blake Dawson Waldron (Second Defendant) CATCHWORDS : Practice and procedure - medical negligence claim - application for appointment of conference between experts - application opposed - applicable principles. LEGISLATION CITED : Supreme Court Rules CASES CITED : Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930 Booth v De Francesco [2002] NSWSC 154 DECISION : See para 34.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFFESIONAL NEGLIGENCE list

STUDDERT J

Friday 15 March 2002

20408/97 RAJKO SPASOVIC & ANOR v SYDNEY ADVENTIST HOSPITAL & ANOR

JUDGMENT 1 HIS HONOUR: This is an application for an order pursuant to Pt 36 r 13CA of the Supreme Court Rules for a conference of medical experts and for consequential orders. The application is made by the second defendant, and it is supported by the first defendant but opposed by the plaintiffs. 2 Ms Murphy, who appeared for the applicant/second defendant, moved on her comprehensive affidavit sworn on 14 February 2002 which identified and annexed the relevant medical reports, identified complex medical issues on causation in this cause and proposed a conference to be attended by a single expert for the plaintiffs, Dr Dorsch, and three experts for the defendants, Professor Morgan, Dr Terenty and Dr Besser. As the plaintiff had also served reports of Dr Vinen, Professor Lance, Professor Eadie and Professor Brew, Ms Murphy acknowledged it would not be inappropriate for those experts to attend as well. 3 It was submitted by Ms Murphy that agreement on some issues may significantly shorten any hearing, and could lead to resolution of the proceedings. 4 In voicing the plaintiffs' opposition to the application, Mr Butcher submitted that the costs of the conference were not warranted. The plaintiffs would require to be present at any meeting not only Dr Dorsch but Dr Vinen, Professor Lance, Professor Eadie, Professor Brew, and Dr Rodriguez. Moreover, he submitted that any conference was unlikely to prove useful having regard to the views presently held by the above identified doctors who have addressed the medical issues in this case. 5 The objectives of joint conferences are defined in Practice Note 121 and it was emphasised in Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930 that the court is alert to the desirability of ordering conferences under Pt 36 r 13CA in appropriate circumstances. However, where, as here, there is opposition to the appointment of a conference, the competing submissions require close consideration. In Booth v De Francesco [2002] NSWSC 154 I said: "Part 36 r 13CA provides a facility which practitioners involved in matters in the Professional Negligence List are to be encouraged to utilise in any case in which the appointment of a conference between experts might reasonably be expected could achieve any one or more of the objectives expressed in para 2 of Practice Note 121, namely: '(a) The just, quick and cost effective disposal of the proceedings.