McLean v Dr Marshall [2015] NSWSC 463

Supreme Court New South Wales

Medium Neutral Citation: McLean v Dr Marshall [2015] NSWSC 463 Hearing dates: 20 February 2014 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Common Law Before: Hidden J Decision: Defendant to pay plaintiff's costs on the issue of liability, to be payable forthwith. Catchwords: COSTS – separate trial of issue of liability – child plaintiff – extent of damage not able to be determined for some years – whether costs of liability issue should be payable forthwith. Legislation Cited: UCPR 2005 Cases Cited: Fiduciary Limited v Morningstar Research Pty Ltd [2002] NSWSC 432, 55 NSWLR 1 Gales Holdings Pty Ltd v Tweed Shire Council (No 2) [2013] NSWCA 458 Gangi v Boral Resources (NSW) Pty Ltd (No 3) [2013] NSWSC 1388 McLean v Marshall [2013] NSWSC 1400 Milich v Council of the City of Canterbury (No 3) [2012] NSWSC 1280 State of New South Wales v Quirk [2012] NSWCA 216 Category: Costs Parties: Jorja McLean by her tutor Nicole Shuttleworth (plaintiff) Dr Richard Marshall (defendant) Representation: Counsel: AP Cheshire (plaintiff) J Downing (defendant)

Solicitors: Thomas Julius Goudkamp, Stacks/Goudkamp (plaintiff) Pamela Michael, Avant Law Pty Ltd (defendant) File Number(s): 2012/180670

Judgment 1. The plaintiff in this matter is a 10 year old girl. In June 2012, by a tutor, she brought proceedings in this court against the defendant, a medical practitioner, for damages for negligence. Put shortly, it is her case that she was born with a dislocation and dysplasia of the left hip, which the defendant failed to diagnose at a time when he should have done. It was diagnosed some years later but, as a result of the delay, she suffers ongoing disabilities, which have also had deleterious psychological effects. 2. On 23 September 2013, Barr J ordered the separate trial of the issue of liability: McLean v Marshall [2013] NSWSC 1400. His Honour did so in the light of medical evidence that the full effects of her injuries, both physical and psychological, could not be assessed until she was 14 – 16 years old. The evidence was that the impact of her physical condition could not properly be determined until she is skeletally mature. As to psychological injury, she was diagnosed with adjustment disorder with anxiety and, differentially, with sub-threshold post traumatic stress disorder, but the evidence was that her psychological state had not stabilised and could not be assessed until around her mid-teens. 3. On 20 November 2013, an amended statement of claim was filed. On 28 November 2013, a defence was filed, in which breach of duty and consequential damage were admitted. On 4 December 2013, Registrar Bradford ordered verdict and judgment for the plaintiff on liability, and reserved the question of costs of that issue. It is that question which was argued before me. 4. On behalf of the plaintiff orders are sought that costs in respect of liability be payable forthwith, and on an indemnity basis. The defendant imposes an order that costs be payable forthwith. He accepts that an order for indemnity costs is appropriate, although there is a dispute about the period which should be embraced by that order.