Hardwick v McSwiney (No 2) [2009] NSWSC 1318

New South Wales Supreme Court

CITATION : Hardwick v McSwiney (No 2) [2009] NSWSC 1318

HEARING DATE(S) : 25 November 2009

JUDGMENT DATE : 25 November 2009

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 25 November 2009

DECISION : Application adjourned to 7 December 2009

CATCHWORDS : PRACTICE AND PROCEDURE – medical negligence - application by plaintiff for expedition and an interim payment of damages pursuant to s 82(3)(c) Civil Procedure Act 2005 – requirement that Court be satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant – where defendant seeks adjournment in order to obtain expert evidence on liability – adjournment granted

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Procedural and other rulings

PARTIES : Suzanne Hardwick (Plaintiff) Dr Patrick F McSwiney (Defendant)

FILE NUMBER(S) : SC 16608/2008

COUNSEL : J O Anderson (Plaintiff) L R Young (Defendant)

SOLICITORS : Catherine Henry Partners (Plaintiff) Avant Law Pty Ltd (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

25 November 2009

16608/2008 Suzanne Hardwick v Patrick McSwiney

JUDGMENT – EX TEMPORE 1 HIS HONOUR: This is an application by the plaintiff by notice of motion filed in court today for an order that the hearing be expedited and for an order pursuant to s 82 of the Civil Procedure Act 2005 that the defendant pay to the plaintiff as part of her damages an amount on an interim basis pending the final determination of these proceedings. In support of that application the plaintiff relies upon an affidavit of Maree Booth sworn 24 November 2009 and upon an exhibit to that affidavit which I have received in evidence. Reference to an earlier affidavit sworn by the plaintiff on 17 December 2008 was also made. 2 By her statement of claim the plaintiff contends that the defendant was negligent in his treatment of her in failing to detect or to follow-up in accordance with appropriate applicable medical practice a lesion excised from her tongue in the early 1990s. In the events that occurred that lesion, according to the plaintiff's case, remained occult and required the plaintiff to undergo surgery with related and associated drastic results. 3 From the plaintiff's point of view she is presently psychiatrically labile and according to her case there is a relationship between that condition and the effect of the breach of duty for which she contends. That labile psychiatric condition is said to have become associated with the threat of self-harm, which may include suicide if inappropriately treated or not treated in a timely way. 4 The plaintiff relies in the present application on a series of reports to parts of which objection was taken by the defendant. For the purpose of the present application, subject to ruling upon those objections, it is sufficient to observe that the plaintiff has demonstrated, on the evidence before me so far, a prima facie case entitling her to relief. 5 However, counsel for the defendant has now applied for an adjournment of the present application in order to consider an expert medical report commissioned by the defendant touching and concerning the question of the defendant's ultimate liability. As I observed in the course of discussion and argument earlier today, the ultimate liability of the defendant is relevant in the first instance to the application for relief pursuant to s 82, particularly having regard to the terms of s 82(3)(c), which provide that this Court should not make an order, in effect, for interim payment unless "the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant". 6 Putting aside for the moment what is intended by the expression "substantial damages", that provision is underpinned by the notion that the defendant will ultimately be liable for some sum to the plaintiff in due course. It is not unreasonable, in my view, that the defendant be permitted an opportunity to promote such case on liability as he may wish to raise in the course of this application in order to assist me in the decision I am required to make having regard to the terms of s 82(3)(c). 7 Without determining the issue finally it is appropriate to observe, having regard to the report of Professor Quadrio, a psychiatrist upon whose opinion the plaintiff relies, and to other material tendered in evidence, that some urgency attends this application at least, as well as the determination of the proceedings generally. 8 For that reason it seems to me that whilst the defendant should be given an opportunity to take such course in this application concerning evidence on liability as it may be advised, a final determination of this application ought to be made sooner rather than later. 9 Having consulted with counsel for the parties I am informed that a continuation of this application before me at 9.30am on Monday 7 December 2009 would be appropriate. It does not seem to me to be necessary to make orders concerning the filing or serving of affidavits or expert reports in advance of the resumed hearing of this application. Undoubtedly if the defendant proposes in due course to rely upon an expert's report of the sort foreshadowed by him, it will be served upon the plaintiff's legal representatives in a timely way prior to the resumed hearing. 10 I will reserve the costs for today until final decision of the plaintiff's application. 11 In advance of the resumed hearing I am asked to rule upon objections earlier taken by counsel for the defendant respectively to the report of Dr J H Seymour on the one hand and Dr Alfred J Coren on the other hand. As earlier indicated, objection to the first report is taken on the basis that it fails to comply with the expert code of conduct and infringes well known authorities touching the question of the way in which expert reports are constructed. 12 The second report is objected to substantially upon the basis that the author of the report does not possess the qualifications relevantly touching the issues in these proceedings. I observe that this is an interlocutory application in which it would be unusual for cross-examination of experts to be permitted and in which the final issues in the proceedings are not called up for determination. It seems to me that having regard to the burden imposed upon the plaintiff as an applicant for the relief she seeks, she should not be prevented from relying upon these reports in the circumstances. However I observe immediately, as would be apparent to all concerned having regard to the issues arising on a consideration of the meaning and effect of s 82(3)(c), that the question of the weight that can or should be given to these reports remains outstanding. 13 In my view each of the reports respectively marked A and B to the affidavit of Ms Booth is admissible and I admit them. I will hear argument in due course, as I have indicated, about what weight should be given to them in the light of any competing opinions that I am asked to consider.