Supreme Court New South Wales Medium Neutral Citation: Porter v Phong Le [2015] NSWSC 1218 Hearing dates: 25 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The proceedings be listed for directions at 9.30am before Adamson J on 3 September 2015. (2) The plaintiff's notice of motion dated 16 October 2014 be otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – application for separate determination of whether defendant breached duty of care – complex medical negligence proceedings – causation said to be complex – time taken to litigate causation exceeds breach – overlap of evidence – application dismissed – best course to allocate a hearing date. Legislation Cited: - Civil Procedure Act 2005 - Uniform Civil Procedure Rule – 28.2 Cases Cited: - Crawley v Vero Insurance Ltd [2012] NSWSC 593 - Neville v Lam (No 2) [2014] NSWSC 300 - Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 101 - Porter v Le [2010] NSWSC 998 - Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 883 - Southwell v Bennett [2010] NSWSC 1372 Category: Procedural and other rulings Parties: Arthur George Porter b.h.t. Barbara Mottershead - Plaintiff Dr Phong Le - Defendant Representation: Counsel: D.E. Graham SC, T. Stevens – Plaintiff J. Morris SC – Defendant Solicitors: Carroll & O'Dea – Plaintiff Norton Rose Fulbright – Defendant File Number(s): 2007/265150 ex tempore Judgment (revised from transcript) 1. This is an application by the plaintiff for an order pursuant to Uniform Civil Procedure Rule ("UCPR") 28.2 that there be a separate determination of the question whether the defendant breached his duty of care to the plaintiff prior to all other issues in the proceedings including causation. The plaintiff seeks a number of consequential orders including that the trial of the breach question be expedited. Background 1. On or about 26 July 2004 the plaintiff, Arthur Porter, consulted the defendant, Dr Le, a general practitioner. It is alleged he complained of nasal congestion and a sore throat and that Dr Le diagnosed him as having acute bacterial rhinosinusitis. Doctor Le prescribed an antibiotic as well as a corticosteroid, "Panafcort". 2. On or about 31 July 2004, Mr Porter collapsed while attending the races at Rosehill. He was taken to hospital. Shortly after being admitted, he had abdominal surgery on a ruptured adrenal gland. According to his statement of claim, he was operated upon again on 1 August 2004, 3 August 2004 and 13 August 2004. While in hospital he was diagnosed with septicaemia caused by Klebsiella pneumoniae, multiple cerebral abscesses, renal abscesses and renal failure. It is said that the cerebral abscesses caused significant and permanent brain damage. 3. Mr Porter is currently in a nursing home. These proceedings are being conducted by a tutor on his behalf (see Porter v Le, Porter v Western Sydney Local Health District [2014] NSWSC 101; "Porter No 2"). The Proceedings 1. These proceedings were commenced in 2007. Self evidently they have had a long history which is partly explained in three judgments of Harrison J, being Porter v Le [2010] NSWSC 998, Porter No 2 and Porter v Western Sydney Local Health District [2014] NSWSC 883. Further, in 2011 proceedings were commenced on behalf of Mr Porter against the legal entity responsible for the hospital that he was admitted to. Following an expert witness conclave conducted in 2014 the proceedings against the hospital settled in December of that year. 2. The motion seeking the determination of a separate question was filed in October 2014. The hearing of the motion was deferred pending the holding of a conclave of expert witnesses on the issues of breach and causation. Those conclaves took place on 23 February 2015 and 24 February 2015 respectively, although signed copies of the transcripts of the conclaves were not made available until recently. 3. It is necessary to say something further about breach and causation. What follows is a very rudimentary outline of some of the issues relevant to each issue. Both experienced counsel who appeared before me emphasised the complexity of the causation issue in comparison with breach. The plaintiff's fundamental contention is that it was negligent of Dr Le to prescribe a corticosteroid on 26 July 2004. The particulars of negligence in a statement of claim also allege that Dr Le was negligent in diagnosing Mr Porter with chronic sinusitis. Dr Le disputes each of the complaints said to amount to negligence on his part. 4. In relation to causation, the plaintiff contends that, either before or soon after but most likely before, he consulted Dr Le he acquired the Klebsiella bacterial infection. He contends the corticosteroids prescribed by Dr Le operated as an immunosuppressant and otherwise masked the symptoms of his infection. He contends that the infection caused the collapse on 31 July 2004 and the cerebral abscesses which caused brain damage. Although it is not entirely clear, I understand that the plaintiff contends that, but for the prescription of the corticosteroid by Dr Le, his symptoms would not have been masked, his immune system would not have been suppressed and otherwise his infection would have been identified much earlier and properly treated. 5. Bearing in mind the plaintiff bears the onus of proof, Dr Le strongly disputes all of these aspects of the plaintiff's case. He contends that the Klebsiella infection was acquired by the plaintiff while he was in hospital and not prior. He contends the plaintiff's collapse on 31 July 2004 was an unrelated event. He also contends that there is considerable doubt about whether Mr Porter ever took the corticosteroid that had been prescribed for him by Dr Le. 6. The asserted complexity of the causation issue compared with the breach issue can be illustrated by two matters. First, there are the estimates of time that it will take to litigate the question of breach compared to the question of causation. Counsel agreed upon an estimate of three to five hearing days for determining breach. They estimated the hearing time that would be involved in determining causation would be approximately six weeks. 7. The second concerns the attendees at the two expert conclaves that I referred to earlier. At the breach conclave seven medical experts attended. Three of the experts who attended were general practitioners, two were otolaryngologists, one was a consultant physician in allergy and respiratory medicine, and the other medical expert was described as a clinician and academic immunologist/allergist. Sixteen medical experts attended the causation conclave. Four of the experts who attended were microbiologists or infectious disease experts, two of the experts were immunologists, one of the experts was a cardiologist, two were endocrinologists, two were neurologists, one was a neuroradiologist, one was a radiologist, one was an intensive care specialist, one was a consultant in allergy and respiratory medical and the other expert was an otolaryngologist. 8. At this point I note two further matters. First, the lay witnesses to be called at this stage appear to consist of four members of the plaintiff's family who saw and observed him prior to and possibly after his appointment with Dr Le, Doctor Le himself and a doctor who attended upon the plaintiff when he collapsed at the race track on 31 July 2004. 9. Second, three medical specialists attended both conclaves namely, Professor Katelaris, Professor Wormald, and Dr Yan. Further, one of the plaintiff's experts, Professor Havas, attended the breach conclave and has given evidence in a written report that addresses causation. Professor Havas was unable to attend the causation conclave. Should the determination of breach be separated from the determination of causation? 1. The principles applicable to a determination of whether the Court should order that a question should be decided separately from the trial of any other part of the proceedings pursuant to UCPR 28.2 were discussed by Hallen AsJ (as his Honour then was) in Southwell v Bennett [2010] NSWSC 1372, at [15]-[18]. I will not repeat that discussion. Further, I added some observations in Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [15]-[20] including the following at [17]: "Second, an interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality: Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5]. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order, but it may be appropriate for the judge to take a more 'interventionist role' in crafting the precise scope of the question: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 per Brereton J at [6]; Commonwealth Bank of Australia v Clune [2008] NSWSC 1125. The counter to the observations in [16] is that sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to a trial but with years having passed. Kirby and Callinan JJ noted in Tepko Pty Ltd v The Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168] that the benefits of a separate question order 'are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory …'." 1. Senior Counsel for the plaintiff, Mr Graham SC, pointed to a number of matters as warranting the making of an order that the question of breach be determined separate to all other issues in the proceedings. First, he contended that the question of whether Dr Le breached a duty of care to Mr Porter was "entirely distinct", and that was evident from the holding of separate conclaves. Second, he contended that it was very unlikely that there would be any real overlap in the evidence affecting the determination of the two issues, notwithstanding some of the expert witnesses are common to both. Third, he contended that the need to avoid costs and delay warranted the making of an order. In particular he submitted that, if the question of breach was resolved adversely to his client, then subject to any appeal that would resolve the matter. Further, he submitted that the relatively short issue of breach could be litigated very quickly, whereas a hearing of the entirety of the matter could not occur for some time, especially given the logistics involved in assembling all the medical experts. Fourth, in oral submissions Mr Graham SC sought to emphasise the need for flexibility in the Court's approach to considering whether to pose a separate question in a manner as complex as this one. 2. Each of Mr Graham SC's points has some force, but I am nevertheless not persuaded that any departure from the ordinary course of litigation is warranted. In relation to the first and second points made by Mr Graham SC, while the issue of whether Dr Le was in breach of duty of care can be stated in terms that suggest it is separate to the issue of causation, I am not persuaded that its determination can be easily or properly undertaken if it was separated from causation. 3. I have already referred to the lay evidence that is likely to be called. At this point, there seems to be a real potential for the evidence of the lay witnesses to be relevant to both the questions of breach and causation, at least so much of causation as concerns the issue of whether Mr Porter in fact took the corticosteroid that was prescribed for him by Dr Le. Mr Graham SC sought to accommodate this by having that issue determined in advance of the others at trial as well. However, once the Court embarked upon a process of attempting to carve out certain isolated issues of fact in addition to the issue of breach, the unwieldiness of the process becomes all too apparent. 4. Further, the overlap between the medical experts who are relevant to breach and causation is especially problematic. It appears that the four experts that I referred to are likely to be of particular significance to a resolution of both issues. To sever breach from causation at this stage has the real potential to compel the trial judge to attempt to resolve breach by dealing with their evidence in a manner that does not affect that judge's ability to later decide causation. That is a very difficult, if not completely impermissible, constraint for one judicial officer to place on another. 5. In relation to the third matter, I accept that, if the question of breach was resolved adversely to the plaintiff, then ordering a separate question is likely to reduce costs and delay. However, that is a very big "if". On the other hand, if the matter is resolved favourably to the plaintiff, then history indicates that the ordering of a separate question will only increase the cost and delay incurred perhaps dramatically. In those circumstances, there would be a further gap to the conduct of the second part of the hearing. The Court's experience is that the cost involved in two hearings is likely to far exceed the costs involved in one. Further, if in the meantime, there is an appeal the potential for even greater costs and delay to be incurred will only increase. 6. In the end result, the plaintiff simply has to confront the causation issue. I see very little to be gained in attempting to separate it from the breach, notwithstanding that the time spent litigating breach is likely to be much less than that involved in litigating causation. 7. In relation to the fourth matter, I can only repeat what I stated during oral argument, namely, in large negligence cases such as this, the posing of separate questions by judges who are not the trial judge is not the adoption of a flexible procedure but instead the imposition of a rigid one. In effect it involves one judge who is not across the scope and nature of the dispute attempting to impose a regime of decision making upon another who is. On the other hand, there are often cases where a judge embarks upon a hearing or is otherwise very familiar with the case and it emerges there is one discrete issue that cannot be determined at that point, but the balance of the proceedings should continue (see for example Neville v Lam (No 2) [2014] NSWSC 300). In such cases the posing of separate questions is able to be described as adoption of a flexible process. More importantly, it is a step that is consistent with the objects of the Civil Procedure Act 2005. 8. Accordingly, it follows that I will not accede to so much of the plaintiff's motion as involves the posing to the Court of a separate question pursuant to UCPR 28.2. Future disposition 1. It seems clear that this notice of motion represented a bona fide attempt by the plaintiff to break an impasse in these proceedings. In my view, the best means to achieve that is to allocate a hearing date and to have the matter case managed by the judge who hears it. The parties indicated that so far as liability is concerned, the matter is ready to be heard. So far as quantum is concerned, it appears there is still much to be done. It is appropriate that it be progressed as far as it can be by the judge who will hear the matter. Given the matter's history, the state of this case is such that the parties and the expert witnesses need to have the focus and certainty of a date upon which the trial will commence. 2. To facilitate that, this matter is to be listed for directions before Adamson J at 9.30 on 3 September 2015. The parties will need to be prepared on that day to take a hearing date some time in 2016 and to provide an outline of how the matter will be ready for hearing at that time. In listing the matter before her Honour, I am not stating that her Honour will be the trial judge. However, I can indicate that once a date is allocated, the parties will be advised accordingly. 3. As for the costs of this motion, I am minded to order that they be the defendant's costs in the cause. Unless I am advised by 5pm on 31 August 2015 that a party wishes to contend for a different costs order, I will make that order at that time. If I am so advised, I will direct the parties to appear before me to make brief oral submissions on that issue. 4. Accordingly, I order 1. The proceedings be listed for directions at 9.30am before Adamson J on 3 September 2015. 2. The plaintiff's notice of motion dated 16 October 2014 be otherwise dismissed. ********** 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: 27 August 2015