Supreme Court New South Wales

• Medium Neutral Citation: Sharif Zraika by his tutor Halima Zraika v Walsh [2014] NSWSC 1774
• Hearing dates: 4 and 10 December 2014
• Decision date: 16 December 2014
• Jurisdiction: Common Law
• Before: Davies J

Decision

The First and Second Defendants' Notice of Motion dated 14 November 2014 is granted in the following terms:

1. Pursuant to Rule 23.4 UCPR, the Plaintiff is to attend, within 14 days of this order, the Pathology Collection Service at the Children's Hospital at Westmead, or such other place as may be agreed between the parties, or as ordered by the Court, to provide a 15 millilitre blood sample whereafter that blood sample is then to be delivered to the solicitors for the First, Second and Fifth Defendants to be subject (at the direction of the solicitors for the First, Second and Fifth Defendants) to the following tests:

(a) whole exome sequence/whole genome sequence;

(b) SNP micro-array/array CGH;

(c) trio sequencing; and

2. Pursuant to Rule 2.1 UCPR and section 61 of the Civil Procedure Act (NSW) 2005, the Plaintiff's parents, Halima Zraika and AN Zraika, attend, within 14 days of this order, the Pathology Collection Service at the Children's Hospital at Westmead, or such other place as may be agreed between the parties, or as ordered by the Court, to each provide a 15 millilitre blood sample whereafter that blood sample is then to be delivered to the solicitors for the First, Second and Fifth Defendants to be subject (at the direction of the solicitors for the First, Second and Fifth Defendants) to the following tests:

(a) whole exome sequence/whole genome sequence;

(b) SNP micro-array/array CGH;

(c) trio sequencing; and

3. The First, Second and Fifth Defendants be permitted to approach Dr John Smoleniec, Director of Liverpool Hospital's Feto-Maternal Unit for the purpose of interviewing Dr Smoleniec and, if appropriate, obtaining a written opinion from him.

4. No order as to costs.

• Catchwords: PROCEDURE - personal injury litigation - causation - whether injuries arose from compensable accident or from genetic disorder - medical testing - whether order should be made for genetic testing - effect of testing on hearing date - whether legal representatives for defendants should be permitted to speak to plaintiff's specialist - whether radiologist's opinion involves doctor-patient confidentiality
• Legislation Cited: Civil Procedure Act (NSW) 2005; Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead [2010] NSWSC 891; Plowman v Sisters of St John of God Inc. [2014] NSWSC 333; Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715; Sharif Zraika (by next friend Halima Zraika) v Rebecca Jane Walsh [2011] NSWSC 1569
• Category: Interlocutory applications
• Parties: Sharif Zraika by his tutor Hamila Zraika (Plaintiff); Rebecca Jane Walsh (First Defendant) Joseph Bernard Walsh (Second Defendant) Roads & Maritime Services (Third Defendant); Bankstown City Council (Fourth Defendant) Ali Zraika (Fifth Defendant)
• Representation: Counsel: D Higgs SC with T Boyd (Plaintiff); K P Rewell SC (First and Second Defendants); M Fordham SC with H Chiu (Third Defendant); R S Sheldon SC with P M Knowles (Fourth Defendant); No appearance (Fifth Defendant); Solicitors: Kheir Lawyers (Plaintiff); McInnes Wilson Lawyers (First, Second and Fifth Defendants); Hicksons Lawyers (Third Defendant); Mills Oakley, Lawyers (Fourth Defendant)
• File Number(s): 2011/52630

Judgment

1 On 10 December 2014 I made orders in terms of paragraphs 1, 2 and 3 of a Notice of Motion filed by the First and Second Defendants. I said that I would provide reasons at a later time. I made the orders because there was an urgency to put into place what had been requested in the orders in the Notice of Motion. These are my reasons for making those orders.

2 The Plaintiff was born on 6 March 2003. Shortly thereafter he was diagnosed with microcephaly and developmental delay. A CT scan of the head undertaken on 25 March 2003 showed intracerebral calcification and asymmetrical extra-axial CSF spaces possibly secondary to congenital infection.

3 On 12 August 2003 the Plaintiff underwent an MRI scan of the brain which showed a marked degree of central and cortical cerebral atrophy. There was a marked widening of the CSF spaces over both cerebral hemispheres. The corpus callosum was atrophic. There was some high signal in the corpus callosum and both thalami on the T1 weighted scans which could be due to calcification. There was asymmetry of the brain stem with the left mid-brain appearing more atrophic than the right, consistent with axonal degeneration.

4 The Plaintiff's treating paediatrician, Dr Paul Shay referred the Plaintiff to Dr Alison Colley for consideration and testing for a genetic cause of the Plaintiff's condition. Dr Colley first saw the Plaintiff on 18 November 2003 and recommended a number of genetic tests via blood sample. These tests were not undertaken until May 2004 and several tests could not be conducted due to an insufficient amount of blood being obtained. Thereafter the Plaintiff's mother was not prepared to allow further blood testing.

5 The proceedings arise because when the Plaintiff was en ventre sa mere, his mother was injured in a motor vehicle accident on 16 November 2002. The Plaintiff's mother was a passenger in a motor vehicle being driven by the Plaintiff's father who is named as the Fifth Defendant in the proceedings. The First and Second Defendants are the driver and owner of the other vehicle which is said to have proceeded from a shopping complex car park across Woodville Road, Villawood contrary to a traffic control sign. The Third Defendant is the Roads and Maritime Services and the Fourth Defendant is Bankstown City Council. Each of them was said to have a responsibility in relation to the approving of the shopping development with a car park (the Council) and having in place proper road controls to prevent the accident (both the Council and the RMS).

6 The Plaintiff alleges that his injuries were caused by the trauma he sustained when his mother was injured in the motor vehicle accident.

7 The matter has been case managed by Schmidt J. On 12 December 2013 her Honour ordered by consent that the issues of the duty of care and breach in relation to the Third, Fourth and Fifth Defendants be determined separately prior to the hearing of the issues of medical causation and quantum. At the same time her Honour noted by consent that the First and Second Defendants admitted that the First Defendant breached her duty of care, that such breach contributed to the collision, but denied that such breach caused any injury, loss or damage to the Plaintiff.

8 The separate hearing took place before Campbell J on 23 June 2014 and that judgment is reserved.

9 On 23 May 2014 an order was made pursuant to s 82 of the Civil Procedure Act 2005 (NSW) that the First and Second Defendants pay to the Plaintiff the sum of $400,000 by way of an interim payment of the damages sought to be recovered in the proceedings.

10 Two days after the motor vehicle accident the Plaintiff, then a foetus, was scanned at Liverpool Hospital with a report subsequently being prepared by Dr John Smoleniec on 7 November 2003. Dr Smoleniec relevantly reported:

The fetus was scanned once in the Feto-Maternal Unit at 25 weeks and 5 days gestational age. I have reviewed the scan images of the fetus of Mrs H Kabbout. The patient was sent for biometry and biophysical assessment. The images taken of the head were so as to obtain head circumference and piparietal diameter ie they are not the usual views. However they do not show any obvious insult. I obtained a second opinion from a radiologist who did not know the history however and she could not find an obvious anomaly.

I saw a report on a fetal scan by Rayscan on 7/1/03 ie 32 weeks and 6 days gestational age. I inserted these measurements so as to demonstrate growth. This shows a remarkable fall-off in the rate of head growth compared to normal ie crossing of centiles. However plotting the HC at birth of 340mm does not support the Rayscan measurement.

11 The Plaintiff's case, as pleaded in the Amended Statement of Claim, is that the injuries to the Plaintiff were caused by the trauma from the motor vehicle accident. The Plaintiff has been diagnosed with a dystonic/spastic quadriplegic form of cerebral palsy as well as a severe intellectual disability and epilepsy. Dr Michael Harbord, a paediatric neurologist, concluded that those conditions were caused by a hypoxic/ischaemic insult at 25 weeks gestation as a consequence of the motor vehicle accident. He went on to say:

24. The pattern of brain damage seen on his CT head scan and subsequent MRI scans is consistent with an insult occurring at 25 weeks gestation. The presence of calcification in the thalami is consistent with an insult occurring at this gestation, while there was no evidence of schizencephaly, nor of an extensive dysplasia of the brain which would be seen if the insult occurred prior to 24 weeks gestation.

12 He also said:

26. ... Although no uterine tenderness or vaginal bleeding occurred in the immediate few days after the accident, this does not exclude antenatal trauma as the cause of the intensive foetal brain damage.

...

[29] When the antenatal ultra sounds performed immediately after the accident on 18 November 2002, and on 7 January 2003, were reviewed by the Feto-Maternal Specialist Dr John Smoleniec in November 2003 he commented on the remarkable fall off in the rate of head growth compared to normal, which had been seen in the seven week interval between these scans. This was consistent with the effects of a significant cerebral insult at 25 weeks gestation.

13 Associate Professor Nick Evans, a clinical associate professor in neo-natal medicine at RPA Women and Babies Royal Prince Alfred Hospital came to a similar conclusion for the same reasons in his report of 26 July 2013.

14 Professor Alistair MacLennan prepared a report for the First and Second Defendants dated 9 September 2014. Professor MacLennan concluded as follows:

In this case imaging has shown potential developmental disorders. As discussed by Mancini et al (Appendix 21) Schizencephaly* is a regional disturbance of cerebral cortex formation.... Clefts bordered by micropolygyria* would result from a malacic (abnormal softening) process initiated between the 12th and 20th foetal weeks." In their 2001 paper they describe three possibly associated traumatic events at 16, 16 (sic) and 19 weeks gestation respectively that were followed by abnormal brain development. Genetic causes were not ruled out.

Both genetic and early fetal trauma may interfere with neuronal migration during fetal brain development and schizencephaly*, poor sulcal formation*, pachygyria* and polymicrogyria*, as described in this case, are associated with abnormal and inhibited neuronal migration.

...

On the balance of probabilities, including the lack of signs of any fetal compromise in this pregnancy that could be attributed to the car accident, I believe that the accident was not related to the neurological outcome.

Although no single specialist is likely to have data and expertise in fetal trauma, neurogenetics, neuroimaging and subsequent neurological outcomes I recommend that further expert opinion is obtained from those publishing academic data in the fields of clinical genetics, neuro-developmental anatomy and paediatric neuro-imaging.

2. Cerebral palsy due to acute hypoxia and ischaemia at birth.

This cause can be clearly ruled out. The international consensus criteria for defining a possible acute hypoxic cause near birth are evidently not met. In particular the umbilical cord gases were normal at birth and neonatal encephalopathy did not ensue. The five timing criteria all point to a chronic long standing cause for the fetal compromise.

3. Unknown developmental causes from early pregnancy that include genetic susceptibility with or without environmental triggers such as antenatal viral infection.

On balance this is the most likely scenario.

15 The First and Second Defendants also obtained a report from Associate Professor Daniel Challis, an obstetrician who concluded as follows:

I do not see any evidence that the motor vehicle accident and the subsequent development of postnatal microcephaly in the baby after birth were causatively linked. Although it is possible that this is the case, none of the findings or mechanisms that may have caused this injury were present. There is no evidence of feto-maternal haemorrhage, the sub-specialist targeted ultrasound two days later showed no intracranial haemorrhage, the mother was never hypoxic and always haemodynamically stable, and the baby was reported as having good movements at all times, with reassuring fetal heart rate patterns. The images from the 32 week scans were reviewed by a senior feto-maternal specialist and an independent radiologist and thought to be normal.

Even if there was a degree of crossing of the centiles in the measured head circumference after the accident as per the Rayscan measurements at 32 weeks, this finding is so common as to be unremarkable, and the baby's head circumference was subsequently measured to be entirely normal at birth, so that by definition did not have congenital microcephaly. I have been unable to find any case reports of the development of microcephaly with the same features as this case following trauma in pregnancy in the literature. By contrast there are dozens of causes of microcephaly reported in the literature, and motor vehicle accidents are also fairly common in pregnancy. These facts leads me to conclude that the cause of the baby's neurological condition was much more likely than not to have been unrelated to the motor vehicle accident.

16 It was apparent, therefore, that there was a serious issue concerning causation with one explanation for the Plaintiff's injuries being a genetic cause.

17 That led Senior Counsel for the First and Second Defendants to recommend an approach to geneticists to provide an opinion on the case. The solicitor for the First and Second Defendants has sworn an affidavit detailing the approaches he made to a number of geneticists in February 2014. He was recommended to contact Dr Ken Maclean, a paediatrician and clinical geneticist. Contact was made with Dr Maclean in mid-February 2014.

18 On 4 September 2014 Dr Mclean expressed the opinion in conference that the Plaintiff and his parents should undergo genetic testing via blood sample. Dr Maclean was asked to provide a report that could be put before the Court to justify an application that the Plaintiff and his parents undergo such testing.

19 Dr Maclean provided a report on 4 November 2014. His conclusions were as follows:

The primary data do not, in my opinion, support a diagnosis of traumatic antenatal brain injury.

There is no indication that the history of shoulder dystocia at delivery is causal for the neurodevelopmental disorder in Sharif.

The laboratory evidence and brain imaging findings do not indicate congenital CMV or other congenital infection as the likely cause of the condition in the plaintiff.

Assimilation of the clinical documentation and current knowledge from the genetic [clinical genomic) literature supports the assertion that the microcephaly-intracranial calcification-porencephaly disorder in the plaintiff is most likely to have a genetic aetiology.

20 Dr Maclean further explained in his report why it was necessary to take blood from the Plaintiff and his parents to analyse the DNA to identify causative genetic mutations.

21 There was evidence from another solicitor at the First and Second Defendants solicitors who had located a laboratory in California to enable the genomic testing to take place. The affidavit annexed documents from the laboratory which identified the cost as well as the turnaround time for testing. That demonstrated that for a higher price there was a turnaround time of 45 days.

22 It was in those circumstances that the First and Second Defendants sought by Motion orders 1 and 2 as follows:

1. Pursuant to Rule 23.4 UCPR, the plaintiff is to attend, within 14 days of this order, the Pathology Collection Service at the Children's Hospital at Westmead, or such other place as may be agreed between the parties, or as ordered by the Court, to provide a 15 millilitre blood sample whereafter that blood sample is then to be delivered to the solicitors for the first, second and fifth defendants to be subject (at the direction of the solicitors for the first, second and fifth defendants) to the following tests:

(a) whole exome sequence/whole genome sequence;

(b) SNP micro-array/array CGH;

(c) trio sequencing; and

(d) any other tests appropriate for the investigation of a genetic cause of the plaintiff's condition.

2. Pursuant to Rule 2.1 UCPR and section 61 of the Civil Procedure Act (NSW) 2005, the plaintiffs parents, Halima Zraika and Ali Zraika, attend, within 14 days of this order, the Pathology Collection Service at the Children's Hospital at Westmead, or such other place as may be agreed between the parties, or as ordered by the Court, to each provide a 15 millilitre blood sample whereafter that blood sample is then to be delivered to the solicitors for the first, second and fifth defendants to be subject (at the direction of the solicitors for the first, second and fifth defendants) to the following tests:

(a) whole exome sequence/whole genome sequence;

(b) SNP micro-array/array CGH;

(c) trio sequencing; and

(d) any other tests appropriate for the investigation of a genetic cause of the plaintiff's condition.

23 In his report of 26 October 2014 (referred to above) Associate Professor Challis compared the nature of foetal ultrasound assessment performed at general radiology practices and maternal fetal medicine units. This was in reference to the fetal ultrasound having been interpreted by Associate Professor John Smoleniec at Liverpool Hospital. Professor Challis said this:

The difference involves the level of expertise, training and experience of the sonographers and reporting sonologists involved in these practices. General radiologists report in all areas of imaging, from x-rays to CT scans to musculoskeletal imaging and ultrasound involving all body systems. These practices provide a service at what would be called in the US a "level 1 scan" -that is a screening and non-expert level, with a wide range of ultrasound equipment. General radiologists are not experts in fetal pathology.

By contrast, a Maternal Fetal unit such as the one at Liverpool provides expert imaging with high end equipment at what would be called in the US a "level 3" scan at the highest level of skill. These sonographers and doctors spend all their time dealing with fetal complications and conditions, and are commonly called on to provide second opinions and advice on the management of complex fetal conditions. A/Professor John Smoleniec who heads that unit is one of the most senior fetal medicine specialists in NSW and chairs the NSW Perinatal Outcomes Working Party. The images from the ultrasound study performed by Rayscan at 32 weeks are not available to me for review, however I note a letter from Professor Smoleniec dated 7 November 2003 where he documents that he was able to review the images (and also asked an independent radiologist to review these images) and found no evidence of abnormalities. He further concluded that the baby's biomety at birth "does not support the Rayscan measurement".

24 Professor Challis noted that the images from the ultrascan performed at 32 weeks were not available to him for review. There was further evidence from the solicitor for the First and Second Defendants that the scans for 18 November 2002 and 7 January 2003 were no longer available. It was on that basis that the First and Second Defendants wished to confer with Dr Smoleniec to discuss with him what he could recall about the scans to see if some elaboration on his report could be obtained. That provided the basis for order three sought in the Notice of Motion that the First and Second Defendants be permitted to approach Dr Smoleniec to interview him and if appropriate to obtain a written opinion from him.

25 The orders sought by the First and Second Defendants were opposed by the Plaintiff. In relation to Dr Smoleniec the complaint was that the reason for needing to approach Dr Smoleniec had not been made clear. This was because the affidavit dealing with that issue was not served until the morning of the hearing of the Motion. The issue of doctor-patient confidentiality was also raised.

26 The basis for opposition to the genetic testing was that a hearing date for the remainder of the issues including causation and damages had been fixed for 2 March 2015 and genetic testing at this late stage would inevitably result in the vacating of that date. That was to be viewed, the Plaintiff submitted, particularly in the light of the fact that the motor vehicle accident occurred on 16 November 2002.

27 The Plaintiff was initially concerned that the turnaround time at the laboratory selected by the First and Second Defendants was said to be 90 days. That would mean there would be minimal time for the Plaintiff to obtain a geneticist if necessary and have a report provided from that geneticist in time for the hearing to commence on 2 March 2015. Although the First and Second Defendants indicated that they were prepared to pay the higher fee to have the results back within a 45 day period that left the Plaintiff with the problem identified in the affidavit of the Plaintiff's solicitor. The problem was that the geneticist the Plaintiff had managed to locate, and who was prepared to assist, was not in a position to review the results provided by the First and Second Defendants, to participate in conclaves or to give evidence by March 2015.

28 The Plaintiff was critical of the delays since February 2014 when the issue of an approach to a geneticist was first raised.

29 A brief chronology of events is necessary. On 12 December 2013 when Schmidt J directed that there be a separate hearing on the issue of duty and breach the matter was fixed in that regard for hearing on 23 June 2014. Schmidt J also made directions for the filing and serving of both lay and expert liability evidence.

30 I have already noted that enquiries were made to locate a geneticist in February 2014 and contact was made with Dr Maclean in mid-February. Mr Newell, the solicitor for the First and Second Defendants, said that he was then focused on the preparation of the liability aspect of the case. He was unable to comply with the timetable appointed by Schmidt J on 12 December 2013. That led to a variation of the timetable on 7 March 2014.

31 On 28 May 2014 Mr Newell sent an email to Dr Maclean advising him that the medical brief for his opinion was ready to be forwarded. However, Mr Newell said that the brief did not go out at that time as he was still negotiating with the solicitors for the other Defendants as to the contents of the brief and the covering letter.

32 On 9 May 2014 there was a hearing before Schmidt J on a Motion by the Plaintiff for an interim payment pursuant to s 82 Civil Procedure Act 2005 (NSW). On 23 May 2014 Schmidt J ordered that the First and Second Defendants pay to the Plaintiff the sum of $400,000 by way of interim payment.

33 On 10 June 2014 Schmidt J made directions for the service of expert evidence by the Defendants on the issue of causation on or before 3 October 2014 with the Plaintiff to serve any evidence in reply by 14 November 2014. Joint expert reports were to be filed and served by 11 December 2014. On 30 June 2014 the Registrar fixed the hearing on quantum and causation for two weeks commencing 2 March 2015.

34 It was not until 20 August 2014 that the brief for Dr Maclean was ready for collection by him. A conference then took place on 4 September 2014 at the chambers of Senior Counsel for the First and Second Defendants where Dr Maclean advised that the Plaintiff and his parents should undergo genetic testing via blood sample. Dr Maclean was not able to provide his written reports until 4 November 2014. Thereafter the First and Second Defendants obtained a report from Professor Michael Ditchfield, a paediatric neurologist, dated 30 November 2014. Dr Maclean provided a further report dated 3 December 2014.

35 In Plowman v Sisters of St John of God Inc. [2014] NSWSC 333 the Plaintiff was found to suffer from mild cerebral palsy and a moderate to severe intellectual difficulty after a difficult birth which resulted in an emergency caesarean section. Whilst Dr Michael Harbord, the plaintiff's expert in that case also, considered that the cerebral palsy and intellectual disability was caused by birth asphyxia Professor Ouvrier thought that there were some unusual features in the clinical picture. Professor Ouvrier also thought that it would be appropriate for the Plaintiff to have a CGH Array Genetic Test in order to explore the alternative possibility that there might be an underlining genetic alteration which contributed to her intellectual deficit.

36 The Defendant in that case moved under r 23.4 UCPR seeking an order requiring that the Plaintiff submit to a medical examination, being the provision of blood for the purpose of undertaking genetic testing. That matter was complicated by the fact that by the time the issue came to be determined the Plaintiff was an adult who, presumably related to her disabilities, had a number of phobias and anxieties in relation to attending medical practitioners and having medical treatment. One particular anxiety related to injections for any purpose.

37 Garling J said:

[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 [Hamilton v State of NSW [2013] NSWSC 1437] at [51]:

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

38 I am satisfied that there is a live issue as to the cause or causes of the Plaintiff's physical incapacity and intellectual difficulty. I am also satisfied that the proposed testing has the capacity to throw light on the issue in the proceedings. I respectfully agree with Garling J that this is the appropriate first inquiry when an order is sought under r 23.4.

39 In Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 Hodgson JA (Allsop P agreeing) held at [31] that r 23.4 extends to orders directed to, and appropriate for, the bringing about of a medical examination, including the kind of medical examination routinely carried out by pathologists so that routine tests or procedures such as the taking of blood samples from a party fall within the rule.

40 Garling J then said in Plowman at [79] that the second issue to be considered was whether there was any particular factor relevant to the Plaintiff which would tell against ordering the testing proposed, bearing in mind that the testing involved the drawing of a quantity of blood from a vein of the Plaintiff.

41 Although at an earlier time the Plaintiff's mother would not give consent to the taking of any further blood from the Plaintiff for genetic testing, no such opposition was raised on the present application. Nothing was put forward suggesting that it was not appropriate by reason of any matter concerning the Plaintiff himself. The opposition was based on the delay and the lack of an explanation for the delay.

42 In that regard the position in the present case could be compared to the position in KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children's Hospital Westmead [2010] NSWSC 891 where the Plaintiff opposed an order for similar testing because the proceedings had been on foot for eight years without such a course being proposed. Despite the age of the proceedings a trial date had not yet been fixed. Johnson J said:

[52] The Civil Procedure Act 2005 requires litigants to move with appropriate despatch in identifying the real issues in proceedings to facilitate the determination by the Court of the case. However, I do not consider that these provisions operate in this case so that the Second Defendant should be shut out from seeking genetic testing because it has not been suggested previously, and the proceedings have been on foot for some years. The position may have been different if a trial date had been fixed and the application was being made in the shadow of the trial. In those circumstances, the arguments advanced for the Plaintiff may lead a Court to decline a very late application for medical examination, acting upon the provisions in ss.56-61 Civil Procedure Act 2005 and the principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.

[53] However, this case has not yet been allocated a hearing date. The Plaintiff's solicitor has indicated, in an affidavit sworn 20 July 2010, that the final hearing of the matter would probably occupy some six to eight weeks of hearing time. If a hearing date of that length was sought now, it may be expected that a likely hearing would not be scheduled until some considerable way into 2011.

[54] I do not consider that the lateness of this application ought be utilised, in this case, to prevent the Second Defendant from taking a legitimate litigious step. The objects of case management include, amongst other things, the just determination of the proceedings: s.57(1)(a) Civil Procedure Act 2005. As Allsop P observed in Richards v Cornford (No. 3) at [107], the considerations in s.57(1)(a)-(d) are inextricably related. Together with s.56(2), s.57(2) requires the Court to apply rules of Court as best to ensure the attainment of the objects in s.57(1). Those objects include the just determination of the proceedings and this means justice for both parties.

43 I accept that there have been some delays by the First and Second Defendants in this matter. I do not consider that they are unexplained although the explanation in relation to the period from late February 2014 until August 2014 is not entirely satisfactory. However, a number of matters seem to me to temper the significance of the delay.

44 First, although this accident took place on 16 November 2002 the Plaintiff only sought to commence the proceedings in 2011. Leave needed to be sought to commence the proceedings out of time and that was granted by Rothman J in December 2011: Sharif Zraika (by next friend Halima Zraika) v Rebecca Jane Walsh [2011] NSWSC 1569. I accept, as Rothman J did, that the Plaintiff and those acting for him did not simply sit on their hands throughout that period. Nevertheless, where the Statement of Claim was not filed until 17 July 2012 a delay of a little under six months which is partly explained cannot be regarded of great significance.

45 Secondly, it is true as the First and Second Defendants' solicitor identifies that attention was focused on the liability hearing from December 2013 when it was appointed until the hearing of liability in June 2014. Whilst that did not necessarily provide an excuse for doing nothing in relation to causation and quantum, the quantum hearing was not fixed until 30 June 2014. By that stage a number of steps had been taken in relation to endeavouring to locate a geneticist and confer with that specialist. Although the fixing on 30 June 2014 of the hearing date and the directions made by Schmidt J for the service of expert evidence by 3 October 2014 ought to have encouraged greater alacrity to get the brief to Dr McLean I accept that part of the delay up until 4 November was Dr McLean's inability, due to work commitments, to provide a report until that date.

46 Thirdly, and of some significance, is the fact that the Plaintiff sought and obtained an interim payment from the First and Second Defendants. When this order was raised during argument, the Plaintiff wanted to lead further evidence about the difficulties of accessing the moneys paid by virtue of the order for an interim payment. I was provided with information from the bar table by the solicitor for the Plaintiff and I accept the information that he told me. The delays seemed to be because of the need for the NSW Trustee and Guardian to sign off and approve payments which the Trustee (National Australia Trustees) desires to make for the benefit of the Plaintiff. I was told, for example, that there had been an application for funds to pay for equipment but the Plaintiff and his parents were waiting for approval to be given by the NSW Trustee and Guardian.

47 Whilst I accept those difficulties are present, they are the sort of difficulties that would be present even if the proceedings concluded successfully for the Plaintiff. An interim payment nevertheless makes a difference where there is a delay in obtaining a hearing date or it is necessary to vacate a hearing date for a particular purpose.

48 Fourthly, and not unrelated to the third matter, is the fact that any verdict in favour of the Plaintiff will not be paid directly to the Plaintiff at least until he is 18 and then, possibly not at all because the Plaintiff will need to have a financial manager and/or trustee. The position differs from a Plaintiff who is of legal and mental capacity who would have the benefit of any verdict shortly after a final judgment.

49 Finally, whilst recognising the significance Johnson J placed on the fact in KF that a hearing date had not been fixed in that matter, the issue here is ultimately a balancing exercise between the significance of the need for the testing and any delay which will be thereby incurred. I am entirely satisfied from reading the medical reports that the causation issue is a serious one and that it would not be fair to the Defendants to refuse to allow them to explore the issue even though some delay will be involved. The dictates of justice referred to in s 58 of the Civil Procedure Act are dictates of justice for both parties to proceedings and not only for the Plaintiff.

50 The result of making the orders will be that the hearing date of 2 March 2015 cannot be safely retained. In those circumstances the Plaintiff accepted, reluctantly, that a later but certain hearing date should now be fixed rather than the present hearing date being retained with the likelihood that if it was later vacated any further date would be at a time much later than can now be fixed.

51 In relation to orders 1 and 2 the First and Second Defendants are satisfied with orders that embrace genetic testing only as described in sub-paragraphs (a), (b) and (c). For that reason, Orders 1 and 2 will not extend as far as any other appropriate testing as identified in sub-paragraph (d).

52 The particular issue relating to the need to contact Dr Smoleniec by the Defendants is what is said to be the inaccurate report of his opinion by Dr Harbord in paragraph 29 of Dr Harbord's report ([12] above) and what Dr Harbord said at paragraph 12 of his report as follows:

This ultrasound was reviewed on the 7th of November by Dr John Smoleniec from the Feto-Maternal Unit at the Liverpool Hospital. Dr Smoleniec commented that the scan performed at 32 weeks gestation on the 7th of January 2003 showed a remarkable fall off in the rate of head growth compared to the normal.

53 In neither passage does Dr Harbord make reference to the last sentence in the extract from the report of Dr Smoleniec set out at [10] above where he casts doubt on the Rayscan measurement. In addition, the need to talk to Dr Smoleniec arises from the fact that the scans that he was discussing are said to be unavailable.

54 Senior Counsel for the Plaintiff submitted that if, as is likely, Dr Smoleniec had no specific memory of the matter, there would be no point in speaking to him about it. However, it does not seem to me that a statement by Dr Smoleniec, if made that he does not have any further recollection than appears in his report of 7 November 2003, is an answer that ought to be accepted as final. Experience teaches that memory can be triggered by particular questions being put as happens in cross-examination frequently.

55 Further, if there is no issue of confidentiality involved in the matters that Dr Smoleniec can give his opinion about, I see no disadvantage in permitting the First and Second Defendants to speak to him about the matter. In my opinion, confidentiality does not arise because Dr Smoleniec was providing an opinion based only on the radiological material and not on any matter imparted to him by or on behalf of the Plaintiff.

56 For those reasons, I considered order 3 as asked should be made.

57 In relation to costs, the Plaintiff sought that costs be costs in the cause. The First and Second Defendants submitted that each party should bear their own costs of the Motion. The First and Second Defendants have been successful on the Motion which was actively resisted by the Plaintiff. The First and Second Defendants' submission, which was generous to the Plaintiff, should be accepted.

58 There should be no order as to costs of the Motion to the intent that each of the Plaintiff and the First and Second Defendants should bear their own costs.

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Decision last updated: 16 December 2014