Murphy & Ors v Chow [2003] NSWSC 303

New South Wales Supreme Court

CITATION : Murphy & Ors v Chow [2003] NSWSC 303 HEARING DATE(S) : 10 March 2003 JUDGMENT DATE : 15 April 2003

JURISDICTION: Common Law Division Professonal Negligence List JUDGMENT OF : Studdert J DECISION : Notice of motion dismissed; costs of the motion to be plaintiff's costs in the cause.

Idoport Pty Limited v National Australia Bank Limited & Ors [2000] NSWSC 1215 CASES CITED : Perre & Ors v Apand (1999) 198 CLR 180 Tepko Pty Limited & Ors v The Water Board (2001) 206 CLR 1 Katie-Tara Murphy by her tutor Vincent Murphy (1st Plaintiff) PARTIES : Karen Murphy (2nd Plaintiff) Vincent Murphy (3rd Plaintiff) David Chun Wan Chow (Defendant) FILE NUMBER(S) : SC 20122/99 COUNSEL : L. Levy SC/S. Fonti (Plaintiffs) I. Pike (Defendant) SOLICITORS : Charlton Shearman (Plaintiffs) Blake Dawson Waldron (Defendant)

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

STUDDERT J

Tuesday 15 April 2003

20122/99 KATIE-TARA MURPHY by her tutor VINCENT MURPHY & ORS v DAVID CHUN WAN CHOW

JUDGMENT 1 HIS HONOUR: The defendant in this matter has applied by way of notice of motion for orders: "1. That there be separate trials on the question of (a) liability and causation; and (b) damages. 2. Such further or other orders as the Court sees fit." 2 The application, pursuant to Part 31 rule 2, is opposed. 3 The defendant is a medical practitioner and was carrying on general practice at the Tindale Street Medical Centre in Penrith. It is alleged that at approximately 7.30 pm on 29 May 1998 the second and the third plaintiffs and their ten months old daughter, who is the first plaintiff, attended at the defendant's surgery seeking attention for the infant plaintiff. It is the plaintiffs' case that the defendant was negligent in his treatment of the infant plaintiff, that he failed to conduct an adequate examination of her, that he failed to carry out adequate investigation and that he failed to diagnose a meningococcal condition. The first plaintiff was allowed to go home with her parents after the examination and central to the plaintiffs' case is that the first plaintiff should have been admitted to hospital immediately for the purpose of necessary tests and examination. Had there been earlier detection of the disease which was afflicting her, it is contended that earlier and effective treatment would have avoided septicaemia which tragically led to below knee amputations and amputation of parts of all the fingers of each of the first plaintiff's hands. The claims of the second and the third plaintiffs are claims which depend upon the issue of liability being established in favour of the first plaintiff. 4 The evidence upon which the defendant relied in support of the motion comprised the following: affidavits of Rebecca Barnes affirmed on 28 January and 4 March 2003; an affidavit of Benjamin Cran sworn on 27 May 2002; and affidavits of Keely Louise Graham sworn 6 December 2001 and 27 February 2002. The plaintiffs relied upon affidavits of Andrea Omerou sworn 28 February 2002 and Malcolm Charlton sworn 7 February 2003. Having read the various affidavits I have identified, I do not find it necessary to refer extensively to the evidence contained in the affidavits for present purposes. 5 I here observe that the notice of motion presently before the Court was filed as long ago as 7 December 2001. Between the time that the notice of motion was filed and the time it came on for hearing there was a joint conference of experts and it would seem that this accounts for the delay in having this notice of motion listed for hearing. 6 Ms Barnes' analysis of the conclusions of the joint experts expressed in para 10 of her affidavit of 28 January 2003 is that the experts concluded: "(a) The first plaintiff suffered from meningococcal septicaemia, not meningococcal meningitis;