X v Sydney Children's Hospitals Specialty Network & Anor (No 2) [2011] NSWSC 1317

Supreme Court New South Wales

Medium Neutral Citation: X v Sydney Children's Hospitals Specialty Network & Anor (No 2) [2011] NSWSC 1317 Hearing dates: 27 October 2011 Decision date: 27 October 2011 Jurisdiction: Common Law Before: Adamson J Decision: Paragraph 8 of the Plaintiff's mother's statement dated 09.10.01 is rejected. Catchwords: PRACTICE AND PROCEDURE - relevance of party's belief where controversial Category: Interlocutory applications Parties: - "X" (Plaintiff) - Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant) - Dr Brian Kearney (Second Defendant) Representation: Counsel: - K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff) - M.J. Windsor SC, S.A. Woods (First Defendant) - J.K. Kirk SC, Ms V.A. Thomas (Second Defendant) Solicitors: Paul A. Curtis & Co (Plaintiff) GILD Insurance Litigation (First Defendant) Blake Dawson (Second Defendant) File Number(s): 2002/069388

EX TEMPORE Judgment

Re objection to paragraph 8 of the statement of X's mother (T201) 1Objection is taken by the Defendants to paragraph 8 of X's mother's statement of 9 October 2001, which reads, "I knew that glucose disorders in children were the domain of paediatric endocrinologists, but I might have called them 'experts in glucose' in conversation". 2This paragraph is, as I understand it, relied upon in support of the Plaintiff's case that had her mother been aware that there was a low Dextrostix reading, she would have insisted that the Plaintiff be referred to a paediatric endocrinologist for further investigation, and that this may, in turn, have led to an earlier diagnosis of hyperinsulinism. 3I have taken into account Mr Connor's submissions that the Plaintiff alleges in part that Dr Kearney and the hospital were negligent in that they failed to inform the Plaintiff's mother of a low Dextrostix reading. He emphasises that the Plaintiff's mother is a general practitioner and that therefore her belief as to appropriate persons to whom the Plaintiff ought to have been referred is of significance because she may have been in a position to insist on such referral had she known of the low Dextrostix reading. 4Notwithstanding Mr Connor's submissions, I consider that paragraph 8, which goes to the belief of the Plaintiff's mother as to the appropriate specialty, ought be rejected on two bases. 5First, the Plaintiff's mother's belief can only be of marginal relevance, if it be relevant at all. Secondly, and of greater significance, is the circumstance that the Defendants inform me that her belief is controversial. In these circumstances, I consider that the admission of paragraph 8 may tend to cloud rather than clarify the issues which I have to determine. Accordingly, by reason of the matters referred to above, in the context of the rulings I have already made, I reject that paragraph.