Supreme Court New South Wales Medium Neutral Citation: Tinnock v Murrumbidgee Local Health District [2015] NSWSC 188 Hearing dates: 9 March 2015 Date of orders: 09 March 2015 Decision date: 09 March 2015 Jurisdiction: Common Law Before: Campbell J Decision: I accept the tender of the joint liability report dated 13 February 2015 as Exhibit A subject to specific objections to be made at the trial and I adjourn the matter part heard before me for further hearing on 13 April 2015 with an estimate of five days. Catchwords: PROCEDURE – civil – adjournment of matter part heard by receipt of tender documents – exceptional circumstances Category: Procedural and other rulings Parties: Kylie Bernadette Tinnock (Plaintiff) Representation: Counsel: AJ Bartley SC with R Ingram (Plaintiff) R Lovas (Amicus) (Defendant) Solicitors: N Meadows, Solicitor (Defendant) File Number(s): 2012/296883 1. The case listed for hearing today is a medical negligence case brought by Ms Tinnock against the Murrumbidgee Local Health District in respect of allegedly negligent treatment she received in hospital when she was treated surgically for the repair of an incisional hernia. I will not say anything more about the facts or the issues. 2. After a rigorous process of case management in accordance with the practice of the Court in the professional negligence list the matter was listed for hearing before me today for an estimated duration of five days. 3. Very regrettably, learned counsel for the defendant, Ms Lynda Young, became suddenly and acutely ill over the weekend. She has been admitted to hospital and as things presently stand it is unclear what her condition is or when she will be well enough to return to work. 4. I am very grateful for the appearance of Mr Lovas of counsel, a senior member of Ms Young's chambers, who fielded her call on the weekend and advised the parties and the Court of her predicament. He has appeared today more or less as amicus with the concurrence of Ms Meadows, the solicitor for the defendant. 5. It is apparent that the case could not proceed today. Whatever the stringency of modern case management, the law is not totally blind to human vicissitudes and from time to time the unexpected and unfortunate will arise which will de-rail the Court's endeavours to have matters on and heard as soon as practicable. 6. Mr Bartley of Senior Counsel, who appears with Mr R Ingram, for the plaintiff understands the predicament that the defendant's solicitors and the defendant find themselves in and has not been other than most becoming in his attitude to the necessity in the circumstances for the case to be adjourned. 7. I did remark during the course of earlier argument that although I could see the difficulty of the liability issues, they did not seem unduly complex and that perhaps an adjournment to, say, Wednesday might enable the defendant to retain other counsel experienced in the somewhat specialised field of medical negligence. However, I am informed by Mr Lovas that he is instructed by Ms Meadows, who is a very experienced solicitor in the field, that it is unlikely that someone suitable could be retained at such short notice to enable the case to get substantially under way sometime this week. I accept that. 8. I have been asked by both parties, essentially, if I would be prepared in the somewhat exceptional circumstances of the case to take it, what might be referred to as, technically part heard by receipt of the tender of a medical report. 9. Generally speaking, I would be very strongly against any such procedure for the simple reason that such an approach may be disruptive of the list, given that cases are fixed for hearing many months in advance and a great deal of resources of the Court's internal management systems are dedicated to forward planning of the hearing list; one should not too readily disrupt the plans and schedules that have already been made for listing matters for hearing lest other cases awaiting their turn are displaced. 10. Mr Bartley tells me, without demurrer from Mr Lovas, that as a practical matter if a case is adjourned, even if the Court has time available, the experience of the profession suggests that once the matter is returned to the case management list, applications arise and some further delay becomes unavoidable. And the experience of the profession, I am assured, is that at least in some cases the effect of an adjournment could be a delay of 12 months before the matter is heard. I do not use the word "delay" to suggest anything other than the mere effluxion of time. 11. In ordinary circumstances that might simply be the unfortunate outcome of an unavoidable adjournment. However, there are considerations in this case which suggest, perhaps, that would be unsatisfactory. 12. In preparation for hearing today I have been provided by the parties with a court book which includes a joint report of two consultant psychiatrists, Dr Klaas Akkerman and Associate Professor Robertson. Although there are some differences between them as to the precise diagnosis that should be afforded to Ms Tinnock's medical condition, they are in agreement that she has a form of Major Depression as a result of the alleged negligence of the defendant. Not only did she suffer a severe infection as a result of the surgery to repair the incisional hernia, but she also underwent a great many procedures to correct the unfortunate outcome of that original surgery and in human terms anyway, understandably, that has had an effect upon her psyche. There is no doubt that she suffers from a psychiatric illness, which seems to be worsening, because of that unfortunate - I use that word neutrally - course of surgical events. 13. The combination of Ms Young's sudden illness and Ms Tinnock's psychiatric condition are, I think, exceptional circumstances that justify me departing from the usual case management practices in this particular case. For that reason, I am prepared to accede to the application to take the matter part heard as it were and to list the matter for hearing before me sooner rather than later. Because of the rostering of a criminal trial later than expected, I am likely to have some time in my own diary in April and the parties assure me that the week commencing 13 April is suitable to counsel and to the expert witnesses, of whom there are seven. It is expected that the case will finish within five days given that the experts will give their evidence concurrently, in two tranches. 14. In those circumstances, I have already accepted the tender of the joint liability report dated 13 February 2015 as Exhibit A subject to specific objections to be made at the trial and I have adjourned the matter part heard before me for further hearing on 13 April 2015 with an estimate of five days. I should inform the parties that I am rostered to preside in a criminal trial commencing on Monday, 20 April 2015 and that there will be no possibility of any extension of those five hearing days that I have allocated. ********** Amendments 25 May 2015 - Hearing date changed to 9 March 2015 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2015