Supreme Court New South Wales Medium Neutral Citation: Bailey v Illawarra Shoalhaven Local Area Health District [2015] NSWSC 910 Hearing dates: 9 July 2015 Date of orders: 09 July 2015 Decision date: 09 July 2015 Before: Harrison J Decision: The plaintiff's application to rely upon the report of Dr Selwyn Smith dated 16 June 2015 is rejected. Catchwords: PROFESSIONAL NEGLIGENCE – medical negligence – child born with cerebral palsy from which he died in adulthood – survival of action – claim by mother for the provision of gratuitous services in the nature of emotional support, socialisation and companionship and psychological and emotional care – evidence – proposed reliance by plaintiff on psychiatric report – where report contains general expressions concerning the value of maternal care – whether relevant to an issue in the proceedings – whether possibility of double counting of services provided – whether report contains an opinion based upon specialised knowledge Cases Cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 75 Category: Procedural and other rulings Parties: Jennifer Bailey (Plaintiff) Illawarra Shoalhaven Local Area Health District (Defendant) Representation: Counsel: A J Bartley SC (Plaintiff) M Windsor SC (Defendant) Solicitors: Slater & Gordon (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2011/11606, 2012/320101, 2012/339079 Publication restriction: NIL Judgment 1. HIS HONOUR: The plaintiff wishes to rely upon a report from Dr Selwyn M Smith dated 16 June 2015. Dr Smith is a psychiatrist. The report was served outside of the time ordered by the Court for the service of expert evidence such as Dr Smith's report. The defendant opposes the use of the report in the relevant plaintiff's case. All three proceedings are scheduled to commence on issues limited to the assessment of damages (if any) sustained by the plaintiff on 4 August 2015 with an estimate of 7 days. 2. The proceedings are concerned with the birth and death of the late Aaron Hoare. The plaintiff gave birth to Mr Hoare on 23 September 1984. She suffered from pre-eclampsia and her son was born suffering from cerebral palsy. He died on 5 August 2011 as the result of complications arising out of that condition. 3. By reason of his injuries and disabilities, Mr Hoare required 24 hour care. He was raised at home for a number of years and the plaintiff provided all of his special care needs on a gratuitous basis. He resided at home with the plaintiff until just before his seventh birthday when he became a resident of Berringa, a hostel for mentally disabled children. He resided there every second week until the hostel closed when he was 18 years of age. Mr Hoare then became a resident of a group home in Wollongong. The plaintiff continued to provide care and support to him every second day as well as every second Sunday from that time until his death. 4. A claim is made in the 2011 proceedings for the cost of past gratuitous domestic services and attendant care provided to the deceased during his lifetime and until his death. This claim has been particularised in the second further amended statement of particulars filed in court on 9 July 2015. It is generally divided into two categories. The first relates to services provided by the plaintiff to her son. These are particularised and described in what appears to be an orthodox fashion and include the provision of physical assistance and the performance of practical tasks required in his care. The second relates to the provision of what is described variously as "emotional support, socialisation and companionship" or as "psychological and emotional care." 5. The particulars of claim also contain a claim for what is described as follows: "Provision of emotional support; assistance to settle Aaron; assistance to primary carer in feeding and bathing; assistance with household activities so mother could devote to childcare and accompaniment to some appointments (2.5 hrs/day)." 1. These latter services were provided not by the plaintiff but by her father and mother, the grandparents of the deceased. 2. In response to instructions from the plaintiff's lawyers, Dr Smith described his task as follows: "You have requested my opinion in regard to the significance of the importance of the relationship between Ms Bailey and her son Aaron. You have also asked whether the level of involvement provided by Ms Bailey was essential for Aaron's care and his psychosocial and developmental wellbeing." 1. Dr Smith's opinion was stated in terms that included the following: "It is my opinion from the documentation I have reviewed that Ms Bailey was a devoted mother who cared for Aaron whilst he was at home until the age of 10. At that time she could no longer physically lift her son and Aaron was then placed into care. Ms Bailey however continued to visit him and arrange home visits. In my opinion it was most essential for Aaron to be provided with such a meaningful relationship. It is clear that his mother responded to her son in a sensitive manner and from the observations of Ms Murada, and I am sure others, Aaron perceived and felt the love and attention his mother provided. Such a relationship in my opinion resulted in a secure attachment between Aaron and his mother and in all probability allowed Aaron to develop a bond of trust. Without such close interaction it may well have been difficult for Aaron to attain balance in his emotions and state of mind. Normal children and certainly children with special needs respond to attuned interaction. This creates a sense of safety and also allows the development of interpersonal connection to others. Without such close interaction the child may not learn to attain emotional balance. The need to be closely attached to a maternal figure as provided by Ms Bailey in my opinion was most important in activating Aaron's potential. The close interaction he had with his mother in all probability influenced the development of his mental processes and allowed the development of his sense of security. In all probability it aided his resilience to stress and made sense of his life and created other meaningful interpersonal relationships. In my opinion it was most important for Ms Bailey to interact to the degree that she did. Not only because of the natural love and care she had towards her son but also because she innately recognised the need for connection and the importance of strengthening her son's feelings of safety particularly within the group home setting. Whilst no doubt Aaron's physical care was being undertaken by the staff at the group home, the psychological input provided by Ms Bailey in my opinion was essential in enhancing his emotional stability. Ms Bailey clearly understood her son's feelings and could respond in a firm and fair manner. Such a response in my opinion was most important to securing the emotional development of Aaron Hoare. If such attachment did not occur with sufficient regularity it is my opinion that the necessary safe and secure experiences that a child, and in particular a disabled child such as Aaron, requires will not occur. The outcome is usually one leading to insecurity in the child because of their insecure experiences. Without the close attention provided by a parent of the type implemented by Ms Bailey it is quite probable that Aaron may well have developed a sense of anxiety and insecurity. A child who cannot depend on a parent's connection may develop not only anxiety and feelings of insecurity but may also experience feelings of terror. Parents that leave their children often cause the child to be overwhelmed, traumatised and frightened. Without such regular and close attachment the child may experience impairment in the regulation of their emotions, difficulties in their communications and develop severe emotional problems. Ms Bailey's attention to her son's needs has been clearly outlined in the documentation received. She was responsive to ensuring he was not physically or emotionally neglected. She engaged closely with his treating personnel. From the documentation that I have reviewed, the degree of involvement provided by Ms Bailey was essential for his psychological development and wellbeing. A failure to provide such close attention in my opinion may well have resulted in signs and symptoms of insecure attachment. Children who do not have secure attachment figures often experience lowered self-esteem and lack self-control They may also display aggression and violence. They have difficulty with the development of trust and affection. A failure to provide secure attachment often results in impairment in a child's ability to establish positive relationships with other people. It should be noted that children with intellectual disability as well as physical disabilities of the type Aaron displayed are more likely to develop serious emotional and behavioural problems than other children. Cognitive impairment often makes it difficult for the child to comprehend events and learning problems create stressful school experiences. Without the close involvement of his mother it is more likely than not that Aaron's mental health difficulties would have been compounded. Disruptive behaviours including temper tantrums, outbursts of aggression and anxiety including fearfulness and depression often occurs in children with intellectual and physical disabilities. Ms Bailey's positive relationship with her son and her devoted attention to encouraging desirable behaviour and teaching him new skills and behaviours in my opinion was most important for his development. In all probability it assisted in promoting self-control and improving his communication." 1. In my view Dr Smith's report is inadmissible and should be rejected for the following reasons. 2. First, Dr Smith's report appears to be irrelevant to the issues that remain for determination. The claim for the provision of so called emotional support by the plaintiff is clearly limited to the emotional support provided coincidentally with the provision of other physical care needs. For example, the claim is particularised on page 11 of the second further amended statement of particulars as follows: "The plaintiff would also provide over the same 2 hours per day, at least every second day, psychological and emotional care which was beneficial to the deceased's social and psychological wellbeing and development in the setting of his disability, further this was beneficial to his ease of management." [Emphasis added] 1. The claim for being present as a parent for the time taken to provide other physical care services for which a claim is also made is double counting. To the extent that no such claim could be made, Dr Smith's report deals with an irrelevant issue. I also do not understand the meaning of the expression "increased time to provide emotional support" if it is intended somehow to refer to the provision of discretely separable or identifiable non-physical attendant care needs. 2. Secondly, the claim for the provision of so called emotional support is primarily concerned with the provision of emotional support by the plaintiff's parents. The nature and extent of the relationship between the plaintiff and her son in a mother-to-son context does not appear to me to have any bearing upon the provision of emotional support by his grandparents. The report of Dr Smith does not deal with grandparental support or bonds or attachments or the manifestation or maintenance of any associated psychosocial wellbeing. It is therefore irrelevant for this reason as well. 3. Thirdly, the claim for assistance by the plaintiff is described as being "over and above normal parenting". Doing the best I can it does not appear to me that anything described or discussed at some length by Dr Smith in his report, and particularly in the passages quoted from it, concerns anything over or above normal parenting in the circumstances presented by this case. "Emotional support, socialisation and companionship" seem to me to be the very things that parents provide in their capacity as parents. I accept by way of contrast that the things done by the plaintiff, noted in the particulars as the physical tasks provided by her as Aaron's mother, fall into a different category and do appear on their face to be tasks over and above normal parenting. However, these are not the things to which Dr Smith's expert opinion and energies have been directed. 4. Fourthly, even though Dr Smith's qualifications as an expert are not in doubt, the opinion that he purports to express is not an expert opinion strictly so understood. Dr Smith did not examine the plaintiff. Dr Smith did not examine the deceased. Any views expressed by him are no more and no less than a statement of what are clearly hypothetical opinions based upon the assumed proposition that the plaintiff's presence and attention to her son was better for him, and therefore more beneficial to his overall progress and comfort, than if she had remained absent. While that view may be taken almost by definition to be accurate, if not axiomatic, Dr Smith's expression of it is not patently or obviously tied to the expression of an expert opinion that is explained in his report. Examination of the deceased may, for all that is or was known by Dr Smith, have produced different conclusions. His views are not capable of empirical verification so far as they concern the deceased in this case. They do not appear to be traceable to him as an accepted repository of specialised knowledge: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 75 at [85]. 5. Finally, the report has been provided late. The relevant proceedings have been on foot in this Court since 2011. The report should have been served well before now and should have been provided in accordance with directions made by the Court. It is also difficult to know what any expert could say about Dr Smith's views to the extent that they are based on general expressions of opinion and largely unverifiable hypothetical assumptions. The defendant ought not to be required at this late stage to attempt to qualify an expert to meet Dr Smith's report. 6. I consider that the plaintiff should be precluded from relying on the report of Dr Selwyn Smith. ********** 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: 09 July 2015