Supreme Court New South Wales

• Medium Neutral Citation: Plowman v Sisters of St John of God Inc. [2014] NSWSC 333
• Hearing dates: 13/02/2014
• Decision date: 28 March 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) Pursuant to r 23.4 of the UCPR, the Plaintiff is to attend within 28 days of this order, at one of the following locations:

(a) Peel Health Care Tamworth;

(b) Laverty Pathology, Tamworth;

(c) The Pathology North Collection Service at Tamworth Rural Referral Hospital; or

(d) Any other location agreed by the parties.

(2) The blood sample obtained pursuant to Order (1) is to be subject to Array Comparative Genomic Hybridisation testing as arranged by the defendant.

(3) The Defendant is to serve a copy of any report with respect to the testing upon the solicitor for the Plaintiff within 48 hours of receipt of that report.

(4) Subject to any further order, the Defendant is to pay any costs of the medical examination in Order (1) and the testing in Order (2).

(5) Costs of the Motion to be costs in the cause.

(6) Liberty to apply on 24 hours' notice.

• Catchwords: PROCEDURE - civil - medical examination - order for plaintiff to have blood drawn for purpose of undertaking Array Comparative Genomic Hybridisation testing; application for - Uniform Civil Procedure Rules 2005; r 23.4 - exercise of discretion - whether testing relevant to an issue of substance in the main proceedings - relevance of plaintiff's medical phobias and anxieties
• Legislation Cited: Trade Practices Act 1974 (Cth); Uniform Civil Procedure Rules 2005
• Cases Cited: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150; Hamilton v State of New South Wales [2013] NSWSC 1437; KF by her tutor RF v Royal Alexandra Hospital for Children [2010] NSWSC 891; Plowman v Sisters of St John of God Inc [2012] NSWSC 376; Rowlands v State of New South Wales [2009] NSWCA 136
• Category: Interlocutory applications
• Parties: Emma Jane Plowman (P); Sisters of St John of God Inc (D)
• Representation: Counsel: M Joseph SC / D Stanton (P); V Thomas (D); Solicitors: Equilaw Solicitors (P); TressCox Lawyers (D)
• File Number(s): 2010/425441

Judgment

1 On 27 September 2013, the defendant, the Sisters of St John of God Inc, filed a Notice of Motion seeking an order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (UCPR), requiring Emma John Plowman (the plaintiff) to submit to a medical examination for the purposes of the proceedings.

2 The medical examination which the defendant seeks is the provision by the plaintiff of 15ml of blood for the purpose of undertaking Array Comparative Genomic Hybridisation testing (CGH).

3 The plaintiff opposes the application and the orders sought.

The Proceedings - Background

4 On 22 December 2010, the plaintiff instituted proceedings in this Court by the filing of a Statement of Claim. The claim sought damages arising from the alleged negligence of the servants and agents of the defendant with respect to the care provided to the plaintiff's mother, Penelope, at and about the time the plaintiff was born in July 1989.

5 For the reasons which he gave in his judgment, Plowman v Sisters of St John of God Inc [2012] NSWSC 376 on 20 April 2012, Hoeben J (as the Chief Judge at Common Law then was) ordered that the limitation period for the plaintiff's action be extended to 24 December 2010.

6 Accordingly, there is now no issue in these proceedings about the length of time which has elapsed from the events in question until the proceedings were commenced.

Factual Background

7 The plaintiff was born on 16 July 1989, and is now over 24 years old.

8 The plaintiff's mother was admitted to the St John of God Hospital in Geelong (the Hospital) late on the evening of 15 July 1989, following the onset of labour that evening. At the time of her admission, the foetal heart rate was within normal limits and was regular.

9 An artificial rupture of membranes was performed at 2245 releasing clear liquor. The foetal heart rate was 140 BPM at 2330. That, of itself, is not an abnormal reading.

10 It appears that some time after 0300 the following morning, a foetal heart rate reading was taken and as a result of concern about it, a CTG monitor was then applied. The CTG trace commenced at 0354 which showed an abnormal foetal heart rhythm with a persistent bradycardia (slow heart rate) of 70 BPM. At that time the plaintiff's mother's cervix was 8cm dilated.

11 The obstetrician was contacted and a decision was made at 0410 to perform an emergency caesarean section under general anaesthetic. The caesarean section commenced at 0420 and the plaintiff was born at 0430.

12 Apparently, according to a record in the hospital notes, the indication for the caesarean section was severe foetal distress. It is not clear to me who made that note, nor the basis upon which it was made. However, severe foetal distress would provide a sound reason for the undertaking of an emergency caesarean section.

13 The plaintiff had severe cerebral depression at delivery and required resuscitation with suction, oxygen, and then, bag and mask ventilation. She was given various drugs. Her initial APGAR score improved from either 4 or 5 at one minute, to 7 at five minutes of age.

14 Arterial blood gas taken at 0540, at 70 minutes of age, showed a persisting metabolic acidosis.

15 At about 17 hours of age, namely at 2105 on 16 July 1989, the plaintiff had an onset of seizure activity with twitching of the right arm and face which persisted for 30 minutes initially, and then recurred intermittently over the following two and a half hours. The seizures were difficult to control despite the medication which was administered. The plaintiff was transferred from the Hospital to the Royal Children's Hospital in Melbourne, for further treatment.

16 On 17 July 1989, a cranial ultrasound was performed which was reported to be normal. Apparently no other brain scans were performed in that neonatal period.

17 On 27 July 1989, the plaintiff was discharged from the Royal Melbourne Children's Hospital back to the Hospital.

18 According to the opinion of Dr Michael Harbord, an expert paediatric neurologist, in his report of 6 August 2009, the description of the early onset seizures provided to him, which were associated with hypotonia and reduced reflex responses, was consistent with a moderate, that is Grade II, hypoxic ischaemic encephalopathy during the neonatal period. He expressed this opinion:

"Emma subsequently showed signs of developmental delay and has been diagnosed with mild cerebral palsy and a moderate to severe intellectual disability. She was not able to walk unsupported until 2 years of age and did not commence speaking in phrases until 4 and a half years of age. She was diagnosed with the mild cerebral palsy at 3 years of age which predominantly affected the right side of the body. She remains left handed, and has poor gross and fine motor coordination, consistent with the cerebral palsy. Her parents are unrelated and there is no family history of developmental delay, intellectual disability or cerebral palsy.

...

Emma has a mild form of cerebral palsy with a moderate to severe intellectual disability which in my opinion are due to birth asphyxia. Cerebral palsy is a chronic disability of the central nervous system characterised by a disorder of movement and posture, caused by a non-progressive insult to the developing foetal or infant brain ...

... Other causes of cerebral palsy include a cortical dysplasia of the brain, an intrauterine infection, hypoxic ischemic insults in the ante-natal period before labour had commenced, significant hypoxic insults in the neo-natal period, chromosome or biochemical abnormalities, and premature delivery with cerebral haemorrhage occurring in the neo-natal period.

No other cause for Emma's cerebral palsy and intellectual disability has been found besides birth asphyxia. There was no evidence of sepsis in the neo-natal period, while the initial cranial ultrasound showed no signs of an anti-natal hypoxic ischemic insult or intrauterine infection. The MRI head scan showed no evidence of cerebral dysplasia. Chromosomes performed on 12 September 1992 were normal and there was no evidence of Fragile X.

In summary I consider that Emma's cerebral palsy and intellectual disability are due to birth asphyxia."

The Proceedings - Present Position

19 The proceedings brought by the plaintiff identify her injury as being "birth asphyxia" and also "consequential cerebral palsy and intellectual disabilities".

20 The plaintiff claims damages in negligence and also for breach of the implied warranties in the Trade Practices Act 1974 (Cth).

21 In her Statement of Particulars, the plaintiff pleads separately three particulars of injuries received, namely:

"1. birth asphyxia;

2. brain damage;

3. cerebral palsy."

22 In its Defence, the defendant denies that it was negligent or in breach of the Trade Practices Act. It generally admits the facts which are pleaded in the Statement of Claim about the events which occurred leading up to the plaintiff's birth, but does not admit the allegations that the plaintiff suffers from hypoxic ischemic encephalopathy, nor does it admit that by reason of that encephalopathy the plaintiff has suffered and continues to suffer from the injury, loss and damage which is particularised.

23 The proceedings have been the subject of a series of directions hearings and the parties have filed evidence and expert reports upon which they propose to rely at a hearing. As yet, no directions have been given for the taking of expert evidence concurrently, nor has a date for a final hearing been fixed. In the circumstances of the present list, it is unlikely that this matter will be heard prior to the second half of this year.

24 The plaintiff's claim for damages is a very large one. She claims that by reason of injuries, loss and disabilities, she will require 24-hour nursing care for the remainder of her life, and that her earning capacity has been entirely destroyed. She claims for various modifications to her home, various additional expenses, and significant sums for the cost of the provision of case management and fund management to her.

25 According to expert evidence which has been served by the defendant, the cost of provision for her future care is in the order of $10,857 per week. Applying this figure in a broad way to the plaintiff's general life expectancy would result in a sum in excess of $10 M for future care which would form one part of the total award of damages.

26 I need form no concluded view about the precise sum for the overall award of damages. It is necessarily the fact that the plaintiff's claim for damages is very substantial. It is not unreasonable to conclude that the plaintiff's claim is in the many millions of dollars. The report obtained and served by the plaintiff with respect to funds management seeks expert opinion on the cost of managing a fund which is estimated to be between $5 M and $15 M. This provides some indication of the plaintiff's anticipated likely award of damages.

27 On any view, the plaintiff's claim is a very substantial one.

Applicable Legal Principles

28 Rule 23.4 of the UCPR provides as follows:

"23.4 Order for examination

(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination."

29 The rule applies to proceedings in which:

"(a) a person's physical or mental condition is relevant to a matter in question, and

(b) either:

(i) that person is a party, or

(ii) that person is a person for whose benefit a party is claiming relief ..."

See r 23.1 UCPR.

30 The power resting in the Court to make orders for medical examination in accordance with r 23.4 of the UCPR, is sufficiently broad to include an order of the kind sought in these proceedings for the taking of a blood sample, and the submitting of that blood sample for testing: see Rowlands v State of New South Wales [2009] NSWCA 136 at [31]; (2009) 74 NSWLR 715 at 726 per Hodgson JA (Allsop P agreeing); KF by her tutor RF v Royal Alexandra Hospital for Children [2010] NSWSC 891 at [15]-[18] per Johnson J; Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 at [4]-[5] per Basten JA (Meagher JA agreeing); Hamilton v State of New South Wales [2013] NSWSC 1437 at [48]-[50] per Bellew J.

31 Equally, it is not in doubt that the power is a discretionary one which must be exercised judicially having regard to factors relevant to the exercise of the discretion in a particular case: see KF at [21].

32 The parties agreed that the Court had the power to make the order sought, but disagreed as to whether the proper exercise of the Court's discretion, on the available evidence, would justify the making of the order.

Evidence Relevant to Order

33 In addition to the matters which I have earlier referred to dealing with what happened to the plaintiff and Dr Harbord's opinion as to her condition, it is relevant to identify the specific evidence relied upon by the defendant for the purposes of this motion.

34 In a report dated 23 September 2012, Professor Ouvrier expressed this conclusion:

"In summary, examination showed a moderately to severely intellectually disabled young lady with mild clumsiness and fine motor disability and relative weakness of the right hand. The neurological findings would best be described as a developmental dyspraxia - 'clumsy child syndrome' - are in the mild range of ataxic cerebral palsy. The right limbs are more affected than the left. There was also a relatively mild postural scoliosis."

35 He also said:

"I am of the view that Ms Plowman's clinical picture is probably all attributable to the events which occurred in the perinatal period and that the findings are due to hypoxic ischemic brain damage suffered at that time. There are some slightly unusual features to the case in that the clinical picture in this term infant is not one of spastic quadriparesis or athetoid/dyskinetic cerebral palsy, but appears to be a more clinically localised form but with substantial intellectual deficit. While the clinical findings mentioned are consistent with the distribution of the white matter and atrophic lesions shown on the brain scan, they are somewhat atypical. ...

Because of the issues raised above, I believe that it would be appropriate for Ms Plowman to have a CGH array genetic test in order to explore the alternative possibility that there might be an underlying genetic alteration which has contributed to her intellectual deficit. "

Later reports of Professor Ouvrier deal more specifically with the question of CGH testing.

36 In a report dated 22 August 2013, Professor Ouvrier expressed the opinion that CGH array testing detected chromosomal disturbances in up to 20 per cent of children with otherwise unexplained intellectual handicap with or without other physical abnormalities. He pointed out that the performance of a CGH array test involved a collection of blood by venipuncture.

37 He went on to explain the proposed test in this way:

"A CGH array has a higher diagnostic capacity than a routine chromosomal analysis (karyotype).

There is evidence to attribute Emma's intellectual disability with associated neurological abnormalities to hypoxic-ischemic damage. There are some aspects of the case which raise the question as to whether there is an additional alternative diagnosis, either causative of, or contributing to, her intellectual disability.

A CGH array could provide information that would identify a number of alternative causes for the disabilities mentioned above.

On the other hand, it does not, by any means, rule out the possible causes of intellectual disability other than certain chromosomal aberrations or disturbances detectable by this particular technique."

38 Professor Ouvrier went on to identify what he described as certain ethical considerations which would need to be addressed. He said:

"As a result of the above ethical and practical implications, it is customary for people to be given genetic counselling before they undertake such tests.

On the other hand, there is a definite possibility, probably of the order of 10 per cent or more, that the findings could alter in a very substantial way the allotment of causation of Emma Plowman's intellectual disorder and provide an alternative explanation to the proposed hypoxic-ischemic basis of her condition."

39 In a further report dated 12 October 2013, Professor Ouvrier said this:

"I am certainly not of the view that such a degree of intellectual impairment could not result from the perinatal hypoxic-ischemic injury which I have accepted as the likely cause of Ms Plowman's cerebral palsy. I am concerned, however, that there may be an additional reason contributing to Ms Plowman's moderate to severe intellectual handicap. ... In retrospect, the wording would more appropriately have been:

'On the other hand, there is a definite possibility, probably in the order of 10 % or more, that the findings (of a CGH array) could alter in a very substantial way the allotment of causation of Emma Plowman's intellectual disorder and provide an additional explanation to the proposed hypoxic-ischemic basis of the cognitive aspects of her condition'. " (emphasis in original)

40 In light of criticism of his approach by Dr Harbord, Professor Ouvrier sought to make plain what he was suggesting. He said:

"In this case, I think that Dr Harbord may have misinterpreted my intentions in suggesting a CGH array. They were not seek an alternative diagnosis to hypoxic-ischemic encephalopathy but to look for other potential genetic influences which may have increased the level of intellectual disability, which is the most serious of Ms Plowman's handicaps".

41 He concluded with this expression of opinion:

"In Ms Plowman's case there is an adequate explanation for her findings, but the relative discrepancy between the physical findings and the level of intellectual disability may indicate an additional causative factor, such as a chromosomal abnormality".

42 Professor Ouvrier went on to say that the test was a matter of taking venous blood usually from the patient's arm, and that such testing could be done at any authorised pathology collection service.

43 Dr Harbord was asked by the solicitors for the plaintiff to address the issue of the CGH array testing. Dr Harbord had previously examined the plaintiff for the purposes of evidence in the proceedings generally. I have earlier, at [18], referred to his opinion.

44 In a report dated 9 September 2013, Dr Harbord said this:

"Emma therefore has a mild right hemiparesis form of cerebral palsy with fairly substantial atrophic changes throughout the brain more marked on the left side than the right side, plus an intellectual disability. Her clinical outcome is therefore entirely consistent with the widespread damage seen on her MRI scan, as a result of birth asphyxia.

Emma does not have an isolated intellectual disability. She has widespread brain damage with associated motor and cognitive impairment. I therefore disagree with Professor Ouvrier's assessment that there is likely to a 10 per cent or more possibility that Emma has a chromosome abnormality to account for her brain damage."

45 In a further report of 5 November 2013, Dr Harbord said this:

"I agree with Professor Ouvrier that in general those with a more severe form of cerebral palsy tend to have a more severe intellectual disability, but there is also a well-recognised group of those with birth asphyxia who have minimal or no motor impairment but a significant intellectual deficit. In particular, research articles have established that there is a link between the watershed pattern of injury as seen on the MRI scan, that is similar to Emma's, and the outcome of a significant intellectual disability, in the absence of a motor disorder."

46 Dr Harbord went on to refer to a series of published articles which supported his view, and then referred specifically to the MRI scan of the plaintiff which was performed on 28 July 2009. Of the findings of that scan, Dr Harbord said:

"This was considered to be a watershed pattern of insult, and was considered to be in keeping with a hypoxic ischemic injury around the time of birth. There was no abnormal signal within the basal ganglia, and no evidence of cortical dysplasia or migration anomaly.

...

If Emma did have a CGH array performed, and this found a chromosome abnormality that has been associated with an intellectual disability, in my opinion this would not be the sole explanation for her intellectual problems. In Emma's case, birth asphyxia has caused brain damage as is evident on her MRI scan. And associated with this watershed pattern of damage, she has an intellectual disability. In my opinion, it is extremely unlikely that any CGH array abnormality would account for the watershed pattern of injury seen on her MRI scan.

In my opinion if a CGH array abnormality was found, this would be an additional but not alternative cause for intellectual disability and the hypoxic brain insult would still be a cause for her intellectual disability."

47 The opinions of Professor Ouvrier and Dr Harbord were contained in reports which were either exhibited to or annexed to affidavits placed before the Court. Neither Professor Ouvrier nor Dr Harbord attended for oral examination or cross-examination.

48 To the extent that their reports differed, any such differences have not been explored in evidence before the Court, and have been dealt with only by submission by the parties.

Evidence of the Plaintiff's Phobias and Anxieties

49 The plaintiff's father, Mr Anthony Plowman, has given evidence which is unchallenged, that he shares the full-time care of his daughter with his wife. He says that he has attended the majority of Emma's medical examinations and has done so throughout her life.

50 He says that Emma, as an adult, has a number of phobias and anxieties in relation to attending medical practitioners and having medical treatment with the result that he tries to limit her visits to the general practitioner and other medical practitioners unless it is absolutely necessary.

51 He says that although he takes Emma to see Dr Kirkwood, her General Practitioner, in order to avoid her apprehension and anxiety building up, he does not inform her of medical appointments and simply takes her to them.

52 In 2009 it was appropriate for Emma to have an MRI scan. Because of her anxiety it was determined that she would need to have a general anaesthetic to have that scan. The administration of a general anaesthetic and the undertaking of the scan meant that the plaintiff needed to be taken to Newcastle from where she presently lives, and the procedure took longer than it otherwise might. Naturally, Mr Plowman is concerned if the plaintiff, his daughter, would need to undergo a general anaesthetic.

53 To the extent that he expresses concern about the plaintiff submitting to a blood test, the evidence of Mr Plowman is somewhat limited. He says:

"Emma does not have the flu injection. Emma knows what having a needle means and will not have a bar of it".

54 He also noted that although he was advised by Emma's general practitioner to have blood taken for the purpose of an overall examination, he did not go ahead with that proposed blood test because he did not want to cause the plaintiff any unnecessary anxiety.

55 The notes of the Hunter New England Health Service kept with respect to the MRI procedure disclose that the general anaesthetic was delivered by an intravenous catheter and that, as well, the plaintiff was intubated. The anaesthetic given was Propofol. The intravenous catheter was introduced into the plaintiff's left hand and the records kept of the procedure do not indicate any adverse consequences to the plaintiff from this procedure. The evidence of the plaintiff's father does not suggest that the anaesthetic was not well tolerated. In advance of the anaesthetic, the plaintiff was given a dose of the prescription medication, Temazapam, which is a sedative. It was intended to have a calming effect.

56 The medical records produced by the General Practitioner's surgery record a number of occasions when, without adverse incident, injections have been given to the plaintiff in the General Practitioner's surgery. In 2001 and 2002, on three occasions, the plaintiff had the Hepatitis B vaccination. The Hepatitis B vaccination is delivered by injection.

57 In 2003, the plaintiff was administered Meningitic, which is a vaccination against meningococcal disease. It is administered by injection.

58 In 2004, the plaintiff received a Boostrix vaccination which is a triple vaccination administered by injection to help prevent diphtheria, tetanus and pertussis (whooping cough).

59 In 2007, the plaintiff received immunisation with Gardasil, which is a vaccine designed to prevent the occurrence of the human papilloma virus. This vaccination is administered in three separate intra-muscular injections into a patient, over a few months.

60 There are no recorded difficulties in the General Practitioner notes with respect to the administration of those vaccinations. There is no adverse reaction recorded, nor is there any note of any phobia or anxiety on the plaintiff's part.

61 No doubt those vaccinations were thought to be necessary for the proper protection of the health and well being of the plaintiff.

62 However, it is clear that to the extent that Mr Plowman is fearful of the plaintiff's reaction to the administration of a needle, or any injection, the plaintiff has in the past received such injections and her General Practitioner has not noted any significant adverse reaction. I am satisfied that if there was any undue reaction, it would have been noted.

63 As well, to the extent that any more complex procedure is contemplated, the hospital notes of the MRI procedure suggest that a single dose of Temazapam was sufficient to ensure a successful procedure which did not cause any distress to the plaintiff.

The Defendant's Submissions

64 The defendant submits that, both the plaintiff's physical and mental condition is relevant to a matter in question in the proceedings. The matter in question, which it submits the plaintiff's physical and mental condition is relevant to, is the issue of causation and damage.

65 The defendant submits that as is apparent from the material, the damages claimed by the defendant, which are substantial, largely relate to the intellectual disability of the plaintiff rather than her physical limitations. It points to the fact that the proposed CGH array test would be directed towards the causation of the plaintiff's intellectual disability and whether any part of it is attributable to an underlying genetic condition.

66 It submits that the opinions expressed by Professor Ouvrier demonstrate that there is a marked disparity between the plaintiff's physical disabilities and her intellectual deficits. On the one hand, the plaintiff suffers from only a mild form of cerebral palsy, but on the other suffers from moderate to severe intellectual disability. The defendant submits that Professor Ouvrier has identified a sufficient prospect that the findings of the proposed genetic testing may provide an alternative explanation of the plaintiff's intellectual disability.

67 The defendant submits that the Court can comfortably be satisfied that the present application is not a fishing expedition and there is more than a bare or speculative allegation of a kind which would not otherwise warrant the making of the order.

68 Finally, the defendant submits that whatever be the result of the examination, if ordered, there will be a fundamental effect upon the proceedings. If on the one hand, the defendant obtains evidence that establishes that the plaintiff would have suffered from significant intellectual deficits regardless of the negligence alleged, the defendant submits that this would be likely to have a profound impact on the quantum of the plaintiff's claim. If on the other hand, as the defendant submits, the testing reveals no underlying genetic cause for the plaintiff's intellectual deficits, then there would be the removal of an area of real doubt which the defendant presently harbours.

69 The defendant submits that the evidence that the plaintiff has a phobia of needles and blood tests, is something which can be addressed by conditions. In any event, it submits that in the balancing process, this would not be sufficient to tell against an order being made.

The Plaintiff's Submissions

70 The plaintiff submitted that the order sought, ought not be made because the defendant was engaged, in effect, on an exercise of fishing, in circumstances where the expert evidence unequivocally attributed the entirety of the plaintiff's physical and intellectual disabilities to the perinatal hypoxic ischaemic encephalopathy.

71 The plaintiff's submissions also addressed the issue of whether there existed any adequate justification for having the CGH testing done. She disputed that one of the features of her presentation, namely a marked discrepancy between the extent of her physical disabilities, and the extent of her intellectual disability could give rise to any need for the CGH testing.

72 The plaintiff submitted that "cerebral palsy" was an indivisible form of damage - hence, if a cause is identified as in this case, there is no room to consider separate causes for the physical disability, and all or some of her intellectual disability.

73 In substance, the plaintiff contended that the defendant was searching, at best, for a possible cause of the plaintiff's disabilities, and that since the law did not recognise the notion of possibilities rather than probabilities, in considering the causation of injury and damage, the result even if the CGH testing did everything hoped for by Dr Ouvrier would be inadequate to discharge the defendant's onus to separate out a compensable cause or causes from a non-compensable cause or causes.

Discernment

74 The first issue which falls for consideration on this Motion is whether there is a live issue as to the cause or causes of the plaintiff's physical incapacity and intellectual disability. In considering this issue, it is sufficient for the Court to be satisfied that there is an issue of substance which will be illuminated by the results of the test which it is proposed to be undertaken. The Court does not have to be satisfied that the issue will ultimately be determined in the defendant's favour.

75 Put differently, as Bellew J said in Hamilton at [51]:

"... there must be sufficient evidence that the proposed testing has the capacity to throw light on the issue in the proceedings ..."

76 Here, there are a number of factors which, in my assessment, are sufficient to satisfy me that the proposed testing may cast light on a live issue. They are these:

(a) the opinion of Dr Ouvrier, which I accept, that the proposed testing has the capacity to identify an underlying genetic alteration which has caused or contributed to Ms Plowman's intellectual deficit;

(b) if such alteration is identified, it has the capacity to affect a valuable element of the plaintiff's claim for damages, namely, the extent to which she would have required attendant care and support services regardless of the events upon which she has sued;

(c) there it is reasonable basis to investigate whether the conduct of the defendant, which is relied upon, is a necessary condition for the occurrence of the plaintiff's intellectual disability. I accept, as do the experts, that the episode of perinatal hypoxia is one explanation for all that has occurred, however that does not mean that, as the plaintiffs submissions seem to suggest, that it is the only explanation.

77 One measure of the relevance of any genetic alteration, or genetic cause is apparent from the first report of Dr Michael Harbord, referred to in [18] above, before he expressed his conclusion about the cause of the plaintiff's disabilities being hypoxic ischaemic encephalopathy. Dr Harbord was careful to eliminate a number of matters associated with a possible genetic cause. He established from a history that the plaintiff's parents were unrelated, and that there was no family history of intellectual disability. As well, he noted that a chromosome test in 1992 had been found to be normal. Dr Harbord's initial conclusion was carefully expressed. He said that:

"No other cause for the plaintiff's .... Intellectual disability has been found .......birth asphysia."

78 It seems to me that the opinions more recently expressed by Dr Harbord do not deny the potential relevance of CGH test results, but rather, somewhat argumentatively, question the need for the test on the basis that Dr Harbord does not agree that the results are likely to show an alternate cause for the plaintiff's intellectual disability.

79 The second issue to be considered is whether there is any particular factor relevant to the plaintiff which would tell against ordering the testing proposed. It is necessary to keep in mind that the proposed testing does involve the drawing of a quantity of blood from a vein of the plaintiff.

80 There seems to be three principal matters to be considered. First, it is submitted that the plaintiff's anxiety, or phobia, about having needles means that she ought not be compelled to undergo the test and have blood drawn. On the totality of the evidence to which I have earlier referred, and in particular the evidence in the medical records about the plaintiff receiving vaccinations by injection over the past years without incident, I am not satisfied that this factor on its own is sufficient to tell against the Court making the requisite order.

81 Secondly, the evidence suggests that the plaintiff gets anxious and upset at the prospect of visiting a doctor. I accept that this is so. But I also accept that through an identified strategy, the plaintiff's father has been able to deal with these fears, and have medical attention when necessary. I am satisfied that such a strategy can also be implemented for any arrangements associated with the proposed testing.

82 Thirdly, the plaintiff submits that information of the kind which may be obtained, that is, information about the plaintiff's genetic structure, may, depending on its content, give rise to difficult and complex decisions about to whom the information ought be provided. That may be so, but whether it does or not, will depend on what the test results show. As well, if the plaintiff's tutor forms the opinion that the results actually throw up a difficult question, then the tutor is able to make application to the Court for orders restricting the publication of the information or, alternatively, should that be appropriate, permitting the publication of the material. This is not a reason to refuse the order, but may be a reason to reserve liberty to the plaintiff's tutor to apply for an appropriate order if so advised.

83 Having been satisfied that the proposed testing can cast light on a matter of substance which is a live issue and that there is no particular reason which tells against the test, the question then is whether the Court should exercise its discretion to order the testing.

84 I am satisfied that it should. The potential benefit to the defendant is significant. The detriment to the plaintiff is not sufficient to tip the balance against ordering the test. In fact, I am satisfied that, when all of the factors are considered, they point firmly in favour of the Court making the order sought.

Orders

85 I make the following orders:

(1) Pursuant to r 23.4 of the UCPR, the Plaintiff is to attend within 28 days of this order, at one of the following locations:

(a) Peel Health Care Tamworth;

(b) Laverty Pathology, Tamworth;

(c) The Pathology North Collection Service at Tamworth Rural Referral Hospital; or

(d) Any other location agreed by the parties.

(2) The blood sample obtained pursuant to Order (1) is to be subject to Array Comparative Genomic Hybridisation testing as arranged by the Defendant.

(3) The Defendant is to serve a copy of any report with respect to the testing upon the solicitor for the Plaintiff within 48 hours of receipt of that report.

(4) Subject to any further order, the Defendant is to pay any costs of the medical examination in Order (1) and the testing in Order (2).

(5) Costs of the Motion to be costs in the cause.

(6) (6) Liberty to apply on 24 hours' notice.

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Decision last updated: 31 March 2014