Neville v Lam (No 2) [2014] NSWSC 300

Supreme Court New South Wales

Medium Neutral Citation: Neville v Lam (No 2) [2014] NSWSC 300 Hearing dates: 19 March 2014 Decision date: 19 March 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Application for an adjournment refused. 2. Order, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following question be decided separately after the trial of all other issues in the proceedings, namely: "What is the quantum of damages recoverable by the plaintiff, if any, for the cost of rearing and maintaining her son, Samuel Nowak." 3. Costs of the application on 19 March 2014 are reserved. Catchwords: ADJOURNMENT - separate question - no question of principle. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 86 Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Cases Cited: Neville v Lam (No 1) (Supreme Court (NSW), Beech-Jones J, 17 March 2014, unrep) Category: Interlocutory applications Parties: Lisa Neville (Plaintiff) Associate Professor Alan Lam (Defendant) Representation: Counsel: A.J. Bartley SC, L. Whalan (Plaintiff) A.J. Sullivan QC, J.M. Sandford (Defendant) Solicitors: Ken Cush & Associates (Plaintiff) Avant Law (Defendant) File Number(s): 2008/289699

ex tempore Judgment

On Plaintiff's application for adjournment 1On 17 March 2014, I granted to the plaintiff a two day adjournment of the hearing of these proceedings. I did so in circumstances where I was informed from the Bar table that a recent medical examination of the plaintiff's son raised a real concern about his vision which, in turn, had the potential to require a recalibration of so much of the plaintiff's case as involves a claim for recovery of the differential cost of raising him having regard to the various disabilities he labours under (see Neville v Lam (No 1) (Supreme Court (NSW), Beech-Jones J, 17 March 2014, unrep.) 2When the matter resumed today, Senior Counsel for the plaintiff, Mr Bartley SC, sought an adjournment of the proceedings generally, although as I will explain, during argument he embraced a proposed order that the Court suggested for the severing of one issue from the balance of the proceedings. 3Mr Bartley SC tendered a letter from a paediatric endocrinologist, Dr Neville, who had seen the plaintiff's son, Samuel, on 14 March 2014. Dr Neville reported that Samuel's father had reported that Samuel had been "tilting his head to read for at least a few months", and that on assessment "his visual acuity ... had minimal vision on the right but 6/6 in the left". 4Dr Neville stated that, as far as she was aware, this condition had not previously been known and she noted that an ophthalmological assessment in 2008 had been undertaken, although she did not have the results. The clear inference is that she thought that if there had been a problem noticed then, it would have been followed up. 5Mr Bartley also read an affidavit from his client which recounts that yesterday afternoon she took her son to an appointment with a registrar at the eye clinic and then later to an appointment with a consultant ophthalmologist. No written report is available at this point from the ophthalmologist. All that is available is the plaintiff's recounting of what the ophthalmologist stated. The plaintiff is not medically qualified. 6An email from the plaintiff to Dr Neville includes the following statement as to what occurred during the examination by the ophthalmological consultant: "After the testing, we met with Dr Tsang. He advised that there was optic disc drusen on the optic nerve on Sam's right eye, but didn't think it to be of any consequence to his amblyopia. He has prescribed glasses and patching to try to correct this; Sam's right eye is long sighted and the left good vision with 4.5 points difference. I have two main concerns regarding this: 1. That Sam's age will limit the efficacy of the treatment as we were advised the earlier detected and treated the better. 2. That there is some connection between his brain abnormalities and nerve deficiencies on the right side of his face and that there may be more to the optic disc drusen." At this point, these concerns have yet to be investigated. As noted, no report from the consultant ophthalmologist is available. 7Senior Counsel for the defendant, Mr Sullivan QC, submitted that this material reveals that the greatest level of concern is understandably held by the plaintiff as to Samuel's vision, but it does not reveal such a level of concern held by the medical practitioners as to warrant any real reason for considering that the plaintiff's case, so far as it involves a claim for the cost of caring and maintaining Samuel, needs to be reconsidered. 8The difficulty for the Court at this point is that this is all preliminary. Clearly, and perhaps understandably, it has an overlay of parental anxiety. All I can state is that there is a reasonable basis for believing that there is a significant concern about Samuel's eyesight that warrants further investigation. In other words, there is a reasonable basis for believing that the plaintiff's case, so far as it concerns a claim for the cost of caring for Samuel, may need to be reconsidered but nothing more definitive can be stated than that. 9As noted during the course of argument, Mr Bartley SC came to embrace a proposed order that I had suggested for the severing of a certain issue which I will come to. 10For the sake of completeness, I should record that if the matter was to be adjourned generally, then there would need to be a reasonable period allowed to the plaintiff to investigate the prognosis for Samuel's eyesight and a recalibration of the case on damages if that prognosis revealed a significant matter of concern. Allowing for that period, and the likely period of delay in obtaining a hearing date, I could not envisage the obtaining of a further hearing date of the requisite length at any point less than eighteen months from today. Leaving aside questions as to the costs thrown away, this would be unfair to the defendant, given that he is facing a claim of professional negligence which has been outstanding against him for a long period already. 11As indicated during the course of the argument about the possibility of adjournment, I raised with the parties a proposal to sever so much of the case as concerned the quantification of the amount, if any, recoverable by the plaintiff in respect of the care and maintenance of Samuel and deciding that question after all other issues in the proceedings have been determined. 12The posing of a separate question is a step that the Court can undertake of its own motion (Civil Procedure Act 2005 (NSW), s 86). The potential advantage of this course is it will allow the matter to proceed as to the balance within the allotted time, while preserving to the plaintiff the possibility of recalibrating so much of her case as may be necessary, depending upon the outcome of the investigations into Samuel's eyesight. 13Mr Sullivan QC submitted that the better course was to simply let the matter proceed, but reserve to the parties the ability to reopen depending upon the outcome of the investigation into the prognosis for Samuel's vision. He submitted that the proposed course of separating out the question of the quantification of the amount recoverable by the plaintiff in respect of the care and maintenance of her son might enable the plaintiff to later "strap up" her case beyond that which was necessary to address any issue raised in relation to Samuel's vision. 14Further, Mr Sullivan QC raised the concern that the severance of some issue or another might operate to deny his client the opportunity to cross examine the plaintiff on some matters concerning her credit and the question of the care and maintenance of Samuel. For example, as I understand the position, there was a concern that if there was a severance of the issue that I have referred to, the defendant would not be able to cross examine the plaintiff as to any difference between the history she may have given to various experts on the severed issue and then follow up that cross examination with those experts. These points were made in a context where the issue of liability turns very much upon a contest between the credibility of the plaintiff and that of the defendant. 15Notwithstanding the points raised by Mr Sullivan QC, I do not consider it desirable to allow the case to proceed on what I regard as the generally vague basis he suggested. For example, if I was to proceed in that fashion, then upon the completion of this round of hearing, I would be in a position where I could, if I choose, proceed to write a judgment while at the same time always being conscious that there may be an application to reopen. The difficulty would become acute if I decided to publish a judgment and the plaintiff later applied to reopen in respect of matters in which I had already made findings. 16During argument, it was suggested that I could choose not to prepare a judgment and wait to see if any application to reopen might be made. In my view, this just highlights the difficulties with the suggested course of action. In a matter where credibility is critical, it is important that I address the question of liability as soon as I can after the evidence on that topic has been given. 17Further, if I was to proceed in the manner suggested and there was to be an application to reopen, there would be a real potential for the wasting of court and expert time in not dealing with the question of what was necessary for Samuel's care and maintenance in the absence of knowing how that was affected by any long term problem with his vision. 18In my view, the better course is to proceed to sever the issues in the manner that I have adverted to already. The concern raised by Mr Sullivan QC about the potential for the plaintiff to attempt to later "strap up" her case in respect of the cost of the care and maintenance of Samuel is a matter that can only be addressed if and when any such attempt is made. 19The concern raised as to the cross examination of the plaintiff concerning matters that may go to the severed issue can be dealt with in the following manner. 20First, it is to be made clear that no restriction on the admission of matters concerning the plaintiff's credit is being placed by the order that I am about to make. 21Second, it needs to be understood that I will, if necessary, make a direction that the plaintiff make available any of her experts concerning the severed issue if requested to do so by the defendant for the purpose of cross examining them about any matter arising out of the plaintiff's cross examination. 22Accordingly, I refuse the application for an adjournment. I order, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the following question be decided separately after the trial of all other issues in the proceedings, namely: "What is the quantum of damages recoverable by the plaintiff, if any, for the cost of rearing and maintaining her son, Samuel Nowak". 23I reserve costs of this morning's application.