McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400

Supreme Court New South Wales

Medium Neutral Citation: McLean by her Tutor Nicole Shuttleworth v Marshall [2013] NSWSC 1400 Hearing dates: 3 September 2013 Decision date: 23 September 2013 Before: Barr AJ Decision: 1. The issue of liability to be determined separately from the issue of damages; 2. Refer the matter to the Registrar for a date to be set down for hearing; 3. Order that costs of the Motion be costs in the proceedings. Catchwords: PRACTICE AND PROCEDURE- negligence claim- separation of issues- whether liability should be determined separately from damages Legislation Cited: Limitation Act 1969 Uniform Civil Procedure Rules Cases Cited: Idoport Pty Ltd & Ors v National Australia Bank & Ors [2000] NSWSC 1215 Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Thomas v Oakley [2003] NSWSC 1033 Category: Principal judgment Parties: Jorja McLean (Plaintiff) Dr Richard Marshall (Defendant) Representation: Counsel: A P Cheshire (Plaintiff) J Downing (Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Avant Law (Defendant) File Number(s): 2012/180670 Publication restriction: None

Judgment 1The plaintiff was born on 4 August 2004 and is now nine years old. It is asserted that she was born with a dislocation and dysplasia of the left hip. 2The defendant was a general medical practitioner, specialising in obstetric and paediatric medicine. It is asserted that he examined the plaintiff on 5 August 2004. The tests he performed included a test for hip dysplasia. He reported her hips as normal. On 20 September 2004 a nurse employed by the defendant carried out on her a six to eight week health check which included testing the hips for dislocation. Her hips were recorded as normal. On 29 March 2005 another nurse employed by the defendant carried out on the plaintiff a six to eight month health check which included testing the hips for dislocation. Her hips were recorded as normal. 3On September 2005 the plaintiff attended the defendant's practice. She was examined there and a report was made about an extra fatty fold at the top of the left leg. On 13 January 2006 the plaintiff's mother told the defendant that the plaintiff was walking in a wonky fashion, leaning to the left, and was knock-kneed with her toes turned in, also that her legs were of different lengths. The defendant noted that the plaintiff was knock-kneed, was becoming pigeon-toed with a wobbly walk, was intoeing, could run but tended to trip from a standing start and had a swinging gait, but no Trendelenburg. The defendant measured the plaintiff's legs and advised that there was a small discrepancy in leg length which was insignificant and within the normal range. He advised a review after a further six months. 4In August 2009 the plaintiff was diagnosed with a dislocation and dysplasia of the left hip. 5The plaintiff asserts that the dysplasia and dislocation were present by 13 January 2006 at the latest and that the defendant was negligent in failing to diagnose that condition by that date. 6The defendant mostly admits the events pleaded up to 2 September 2005, though he takes issues with some details. He denies that the plaintiff saw a particular nurse, but not that she was seen by a nurse, on one of the occasions pleaded. The defendant denies negligence and pleads contributory negligence in that the plaintiff failed to follow the recommendation he made on 13 January 2006 for a review after a further six months. Instead the plaintiff sought no medical advice or treatment until August 2009. 7The plaintiff has moved the Court for an order under R28.2 Uniform Civil Procedure Rules (UCPR) that the issue of liability be determined separately from the issue of damages. The plaintiff asks the Court to set down her case for hearing on liability. Costs orders are sought. 8The Motion is opposed. 9Mr Cheshire, for the plaintiff, read the affidavit of the plaintiff's solicitor, Yevgen Shkuratov, made on 28 August 2013. Annexed were copies of reports written by two specialists, Dr Angus Gray, paediatric orthopaedic specialist dated 6 February 2013 and Associate Professor Quadrio dated 5 March 2013. Dr Gray is of the opinion that the full effects of the condition upon the plaintiff will not be able to be established until she is skeletally mature, say between the ages of 14 and 16 years. Dr Quadrio diagnoses adjustment disorder with anxiety, and differentially sub-threshold post-traumatic stress disorder. She is of the view that the plaintiff's condition is not stabilised from a psychological or psychiatric perspective and that it will not be possible to assess her psychiatric injuries completely until she is around 14-16 years old. 10The defendant takes no issue with that concurrence of medical opinion and the parties agree that no attempt should be made to assess the quantum of the plaintiff's loss until she reaches the stated age range. That will require a deferment of her claim in that respect for at least five years and probably more. 11Her case on liability could be heard and determined now.