Supreme Court New South Wales

• Medium Neutral Citation: Kashyap v Sydney Local Health District [2014] NSWSC 182
• Hearing dates: 27 February 2014
• Decision date: 27 February 2014
• Before: Harrison AsJ

Decision

The Court orders that:

(1) There be a separate trial of all issues relating to breach of duty and causation of damage, including the determination of the extent and cause of the plaintiff's injuries and disabilities caused by the defendant's tortious conduct (if any).

(2) The balance of the proceedings being the quantification of damages, if any, resulting from the findings of fact in any trial pursuant to Order 1, are stood over generally to await the outcome of the earlier trial.

(3) Costs of the plaintiff's notice of motion filed 27 April 2012 are costs in the cause.

• Catchwords: SEPARATE DETERMINATION - whether breach of duty and causation should be separated from damages
• Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 60; Uniform Civil Procedure Rules 2005 (NSW), Pt 28.2
• Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corporation [1999] NSWSC 1037; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334; Dunstan v Simmie & Co Pty Ltd [1978] VR 669; Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215; Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464; King v Griffiths [2013] NSWSC 808; Perre v Apand Pty Limited [1999] HCA 36; (1999) 198 CLR 180; State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1
• Category: Separate question
• Parties: Ashuthosh Kashyap bht Padmaja Sagarkavi (Plaintiff); Sydney Local Health District (formerly known as Sydney South West Area Health Service) (Defendant)
• Representation: Counsel: B C A Bradley (Plaintiff); S Woods (Defendant); Solicitors: Sharah & Associates (Plaintiff); Curwoods (Defendant)
• File Number(s): 2007/265162
• Publication restriction: Nil

Judgment

1 HER HONOUR: By notice of motion filed 27 April 2012 the plaintiff sought a separate trial pursuant to Part 28.2 of the Uniform Civil Procedure Rules 2005 (NSW).

2 Part 28.2 reads:

"The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings".

3 Both parties agree to an order that there be a separate trial on all issues related to breach of duty and causation of damages, including the determination of the extent and cause of the plaintiff's injuries and disability caused by the defendant's tortious conduct. The second order the parties agree to, is the balance of the proceedings being the quantification of damages, if any, resulting from the findings of fact in the trial pursuant to order 1, be stood over subsequently to await the outcome of the said trial; and that costs of the motion be costs in the cause.

4 Notwithstanding that the parties agree it is for this Court to determine whether or not orders concerning a separate trial should be made.

5 I have largely adopted counsel for the plaintiff's written submissions and have included my own reasoning.

Background

6 On 27 June 1997, the plaintiff was born by caesarean section at approximately 25 weeks gestation. Shortly after his birth, he was intubated with an endotracheal tube and transferred to the Neonatal Intensive Care Unit (NICU). The events that give rise to these proceedings occurred when the plaintiff was eight days old.

7 The treatment notes of the plaintiff are quite extensive. They have been summarised extensively in the medical reports exhibited to the affidavits of Ms Sharah sworn in support of this motion. The following is uncontroversial:

(a) On 27 June 1997, the plaintiff underwent an echocardiogram that showed a Patent Ductus Arteriosus (PDA) of 2.5 mm diameter. He was treated with Indomethacin.

(b) On 2 July 1997, a subsequent echocardiogram showed a persistent PDA with good myocardial function.

(c) On 3 July 1997, a cranial ultrasound was performed. There is a diversion of opinion as to what maybe shown on that cranial ultrasound.

(d) On 5 July 1997, the PDA is recorded in the notes as closed; it is an issue as to whether the last echocardiogram shows that the plaintiff's PDA as closed or closing as at that date.

(e) On 8 July 1997, a decision was made in the morning to give the plaintiff 20% albumen and a packed cell transfusion, with Frusemide cover and to then extubate the plaintiff. The plaintiff's oxygen requirement had been climbing through the day. He was extubated at 1400 hours. His oxygen requirements continued to rise to. The plaintiff did not tolerate extubation and a decision was made to reintubate him. This occurred about 1600 hours. Echocardiogram showed a large PDA with large bilateral shunt. The plaintiff was given a dose of Indomethacin and a further blood transfusion. Cranial ultrasound showed a large right sided intraventricular haemorrhage without ventricular distention.

(f) On 9 July 1997, the plaintiff underwent a cerebral ultrasound that reported "the bulky choroid plexus, mild periventricular white matter hyperechogenicity remain unchanged. The findings are likely to be related to prematurity".

(g) On 13 July 1997, the plaintiff underwent surgical ligation of his PDA.

(h) On 17 July 1997, a further cerebral ultrasound was reported as "simple sulcal pattern is consistent with prematurity. There are Grade 1 SHE [subendymal haemorrhages] in both lateral ventricles".

(i) On 28 July 1997, the plaintiff underwent a cerebral ultrasound that demonstrated evidence of cystic periventricular leukomalacia (PVL).

8 The plaintiff went on to develop severe cerebral palsy with spastic quadriplegic pattern, consistent with the severity of his PVL.

9 On 26 October 2007, the plaintiff's tutor commenced proceedings in this Court alleging that the plaintiff's cerebral palsy was caused by the negligence of the defendants in proceeding to extubate him on 8 July 2007.

10 The plaintiff is currently 16 years of age.

Whether the orders should be granted

11 There are a number of authorities on this topic which include Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1; Perre v Apand Pty Limited [1999] HCA 36; (1999) 198 CLR 180 at [436]; State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corporation [1999] NSWSC 1037. In Idoport Pty Limited v National Bank Ltd [2000] NSWSC 1215, Einstein J at [7]-[8] helpfully provides a compendium of cases upon this topic, which I need not reproduce here.

12 In Tepko, Kirby and Callinan JJ cautioned against the severing of issues by the Court. Their Honours stated:

"[168] ... we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

[169] The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests.

[170] Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question." [Footnotes omitted.]

13 The Court should also consider the overriding purpose, objects of case management and the proportionality of costs (Civil Procedure Act 2005 (NSW), ss 56, 57 and 60).

14 In determining whether to order separate determination of issues, the Court ought take into account the following:

(a) Will the determination of the question in one way bring the proceedings to an end, thereby obviating the expensive determination of the remainder of the hearing?

(b) Will the determination of the question in one way likely give rise to a strong prospect that the parties would agree upon the result if the core of their dispute is decided (Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334)?

(c) Will there be underlying credit issues that will impact on the separate question and the remainder of the hearing that render separate determination futile (King v Griffiths [2013] NSWSC 808)?

(d) Whether separate determination would give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464)?

(e) Is there a bright line between the issues raised in the separate trials?

(f) Two appeals or one?

15 Both parties seek to have the issue of liability and causation separately determined from the assessment of damages. The determination of the issue of liability and causation against the plaintiff will conclude the proceedings. In so doing, it will avoid the parties having to incur the substantial cost of preparing and conducting a hearing as to the proper assessment of damages in a minor with severe cerebral palsy with spastic quadriplegic pattern.

16 On the issue of damages, the plaintiff has already obtained the following expert evidence:

(a) Report of Marie Antoinette Redoblado Hodge, neuropsychologist, dated 27 March 2008, who opined:

"Given Master Kashyap's young age, it is extremely difficult to predict the long term effects of his prematurity at birth and subsequent hypoxia on his cognitive, emotional and behavioural development/functioning, and in turn on his educational potential, employability and capacity for independent living in adulthood. Further neuropsychological assessment when Master Kashyap is aged 16 to 18 years will be necessary to address these issues."

(b) Report of Professor Oakeshott rehabilitation consultant, dated 21 August 2008. He opined that the plaintiff requires total support for all activities of daily living and will do so for life.

(c) Report of Glynis Flanagan, occupational therapist, dated 13 May 2011. Ms Flanagan recommended that the plaintiff have a modified vehicle, home modifications to accommodate his disabilities and intervention from various therapists (such as a speech pathologist, hydro therapist, podiatrist etc). Reports as to the cost of same have not yet been obtained.

17 If separate determination of the issue of liability is against the plaintiff, then this will avoid the substantial costs and court time associated with the forensic determination of the assessment of the plaintiff's damages.

18 If the separate question is determined in favour of the plaintiff, then resolution of most, if not all, heads of dispute should be able to be negotiated between the parties. Each party is represented by experienced counsel. The likely range of damages in a case for such severe cerebral palsy may be anticipated.

19 Once the liability and causation issues are determined, the prospect of the proper assessment of damages without involving court time will improve. The proceedings may settle or heads of damage may be agreed.

20 The determination of the separate trial will primarily involve the objective clinical records and there are no credit issues that would impact upon the determination of the issues for separate trial. It will not involve assessing the credibility of the parents' evidence. I accept that the parents' credibility may become an issue in relation to the quantum hearing, if there is one.

21 It is my view that the issues to be determined at the separate trial do not overlap the issues that will be raised during the trial for the assessment of damages, if there is one.

22 Leaving aside the possible resolution of the proceedings or the facilitation of earlier resolution following separate determination; in the circumstances of these proceedings, the separate determination of liability issues would be just, quick and cheap.

23 The plaintiff's parents are of limited financial means and do not have adequate funds to cover the cost of properly preparing the evidence necessary for the assessment of damages nor meeting the extensive costs of having those experts conclave and give evidence at a contested hearing. The costs of the same will be met by the plaintiff's parents from their relatively modest assets, savings and income.

24 If there is a separate liability and causation hearing, it may lead to the saving of court time. The liability and causation hearing is estimated to take one week. A hearing involving expert medical evidence from at least three specialties (after conclave) such as paediatric neurologists will take, what I estimate to be, about two to three weeks of court time.

25 The factors that mitigate against making the orders sought are, firstly, the severing the trial gives rise to the possibility that there may be two appeals rather than one; and secondly, that some witnesses will have to give evidence twice, but the overlap may include the plaintiff's parents and a limited number of specialists. I have taken these factors into account.

26 It is my view that the overall circumstances of this case warrant a departure from the usual situation. There should be a separate trial on the issue of liability and causation. I make the orders that have been agreed between the parties.

The Court orders that:

(1) There be a separate trial of all issues relating to breach of duty and causation of damage, including the determination of the extent and cause of the plaintiff's injuries and disabilities caused by the defendant's tortious conduct (if any).

(2) The balance of the proceedings being the quantification of damages, if any, resulting from the findings of fact in any trial pursuant to Order 1, are stood over generally to await the outcome of the earlier trial.

(3) Costs of the plaintiff's notice of motion filed 27 April 2012 are costs in the cause.

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Decision last updated: 06 March 2014