Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441

Supreme Court New South Wales

Medium Neutral Citation: Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441 Hearing dates: 20 October 2017 Date of orders: 20 October 2017 Decision date: 20 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) I order that Mr Blackett SC be appointed as chairman of the joint conference of experts to be held on Monday, 23 October 2017;

(2) I order the defendant to bear Mr Blackett's fees;

(3) I order that the costs of the directions hearings before me on 17 October 2017 and 20 October 2017 are the parties' costs in the cause. Catchwords: CIVIL PROCEDURE – Medical negligence – Whether conference of liability experts should be held with a facilitator Category: Procedural and other rulings Parties: Mr James Phillip Coffey (by his tutor Ms Kathleen Amanda Coffey) (Plaintiff) Murrumbidgee Local Health District (Defendant) Representation: Counsel: A J Bartley SC with Ms J Hillier (Plaintiff) D J Downing with Ms J Fox (Defendant)

Solicitors: Commins Hendriks (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2011/108788; 2011/110448 Publication restriction: Nil

EX tempore Judgment (revised) 1. I have been involved in making directions for the final case management of this matter which is a claim for damages for medical negligence relating to injuries allegedly suffered by the plaintiff at the time of his birth and an associated nervous shock claim by his mother. The matter was before me on Tuesday of this week and again this morning. 2. I am very pleased to record in these reasons that despite the large number of matters in issue between the parties, the vast majority of them were resolved by agreement between them. These issues included what had been highly contentious questions about the brief of materials, assumptions and questions to be considered by the liability experts at the conference amongst them which is to be held on Monday, 23 October. 3. One matter that is not agreed is whether the conference should be held with a facilitator. The defendant applied for such an order and given the financial position of the plaintiffs undertook to bear the additional cost of the provision of a facilitator itself. The plaintiffs are strenuously opposed to the appointment of a person who might be described as a facilitator. Mr Bartley of Senior Counsel who appears with Ms Hillier for the plaintiffs argued strongly that the matter was not one calling for the provision of such a person to be present at the conference among the experts. 4. He made a number of salient points. Those points included the argument that the three liability experts were all experienced medical practitioners very familiar with the requirements of giving expert evidence including participation in a joint conference and the preparation of a joint report. Given that the parties had agreed upon the majority of the assumptions to be made and on the form of each of the questions it was unlikely that there was any complexity in the process that might require the assistance to the experts of a third person. Finally, and I think as a matter of principle, Mr Bartley argued that the intercession in the process of even a member of the inner bar introduced a person who was not, in a sense, objectively accountable to the parties for the conduct of the joint conference. 5. The concern voiced by Mr Bartley was that unwittingly the presence of another person would or may stultify the free discussion of the issues amongst the experts by shutting down their discussion, by taking an unduly technical approach to the construction of the questions, the issues in the case, and the task of the experts. For instance, it was pointed out that there is no Code of Conduct for a facilitator or for a chairperson appointed by the Court by reference to which such a person may inform himself or herself as to his or her proper role. 6. Mr Bartley also pointed out that under the relevant Practice Note the expression "chair" is used rather than facilitator although one of the experts can fulfil the role of chair, and that role does not have to be filled by another person. 7. Mr Downing of Counsel who appears for the defendant pointed out that one of the experts, a Doctor Lyneham, had suggested that such a person would be of assistance to him and he believed to the other experts. Mr Downing also submitted that notwithstanding the success of the parties in reducing the issues, there was still complexity in the case and the involvement of a facilitator, or a chair, would assist in keeping the process of the joint conference on track. 8. The defendant suggested the names of a number of members of the inner Bar, each of whom is known to have expertise in the area of medical negligence. One of their number was Mr Paul Blackett SC. In resolving the matter this morning, without then giving reasons, I nominated Mr Blackett to assist at the joint conference and in deference to Mr Bartley's submissions designated him as "chair" of the conference rather than "facilitator". It seems to me that there was force in Mr Bartley's argument that acting as a chair of a meeting was a well-known role and that that was appropriate in the circumstances to assist the experts to deal with the matters referred to them in an orderly way and, to the extent necessary, to maintain their attention to the questions to be asked. Moreover, it is likely that a person fulfilling that role would take on the duties of a secretary by recording, as necessary, the opinions of the experts in a coherent way in a joint report to assist the Court. 9. I am familiar with the role referred to in the rules as "facilitator", sometimes referred to in practice as "moderator" and, of course, as "chair". It has been my experience that the involvement particularly of a member of the bar in that role can be invaluable, and the involvement of a person in those roles however designated in the given case assists in the administration of justice, and in the provision of the joint report by the experts, which is likely to be provided in proper form. This is of assistance to the parties as well as the Court in the resolution of the case. 10. I think it can be said that an experienced member of the Bar, especially Senior Counsel, can be relied upon to thoroughly know the proper role of the expert witness and the purpose and function of the joint conference and preparation of a joint report. Given that, I think it is very unlikely that someone in that position, and certainly not Mr Blackett, would be tempted to put himself or herself in the shoes of the expert, or take over their deliberations, or depart from the assumptions and questions that have been agreed between the parties and submitted to the experts for their deliberation. In my judgment this is a case which will benefit from the involvement of Mr Blackett chairing the joint conference. 11. It is also important to bear in mind that the hearing of this matter is only about four weeks away and the involvement of an independent person like Mr Blackett ought to assist in the prompt preparation and distribution of the joint report. 12. It was for these reasons that I made the order I made earlier today.