X v Sydney Children's Hospitals Specialty Network & Anor (No 4) [2011] NSWSC 1310 (31 October 2011)

Last Updated: 18 November 2011

Supreme Court New South Wales

Case Title:	X v Sydney Children's Hospitals Specialty Network & Anor (No 4)
Medium Neutral Citation:	[2011] NSWSC 1310
Hearing Date(s):	28 October 2011
Decision Date:	31 October 2011
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Decline to rule that the first full paragraph on page 4 of the Report of Professor Inder served 08.04.10 is inadmissible.
Catchwords:	PRACTICE AND PROCEDURE - UCPR 14.14 - Application by the Plaintiff to exclude portions of an expert report sought to be adduced by the Second Defendant - Whether the Second Defendant is required to plead an alternative cause in his defence - procedural fairness - surprise
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) - Schedule 7, 14.14(2), 23.4
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	- "X" (Plaintiff) - Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant) - Dr Brian Kearney (Second Defendant)
Representation
- Counsel:	Counsel: - K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff) - M.J. Windsor SC, S.A. Woods (First Defendant) - J.K. Kirk SC, Ms V.A. Thomas (Second Defendant)
- Solicitors:	Solicitors: Paul A. Curtis & Co (Plaintiff) GILD Insurance Litigation (First Defendant) Blake Dawson (Second Defendant)
File number(s):	2002/069388
Publication Restriction:

JUDGMENT

Plaintiff's Notice of Motion filed 28 October 2010

1. By Notice of Motion filed on 28 October 2011 the Plaintiff sought various orders including a ruling that the first full paragraph on page 4 in Professor Inder's first report served 8 April 2010 (the First Report ) is inadmissible. When I refused to make the ruling sought in prayer 1 of the Plaintiff's Notice of Motion, Plaintiff's Counsel sought that I give reasons in due course for my decision.

2. Mr Connor also made submissions related to Professor Inder's most recent report which was served after the hearing of this matter had commenced. However, since I decided that matter in the Plaintiff's favour, it is not necessary for me to go into detail of the contents of that report, and I confine reasons to the admission of the paragraph set out in the First Report.

3. The paragraph of the First Report which the Plaintiff seeks to have ruled inadmissible is as follows:

"Finally, in understanding the pathway to neurological disability it is clear that hypoglycaemia in the new born results in a risk of a selective posterior dominant pattern of cerebral injury ... and/or increased patterns of global injury ... [X] does not demonstrate any abnormality on her MRI scans consistent with hypoglycaemic cerebral injury. Thus, one cannot exclude that there may be other metabolic/genetic and/or developmental disabilities that may be contributing to her neurodevelopmental impairments."

4. The Plaintiff relied on the affidavit of Paul Anthony Curtis, the Plaintiff's solicitor, sworn 28 October 2011 and parts of various other affidavits which had been sworn by him in the course of these proceedings.

5. Mr Connor, the Plaintiff's Senior Counsel, objected to the paragraph on several grounds.

6. First, he submitted that the paragraph was irrelevant. He pointed out that the learning referred to related to newborns as distinct from infants and therefore it was not apposite to the Plaintiff. Mr Connor also emphasised the words "in a risk of" in the first sentence and said that that was not sufficient to establish causation. Further, he submitted that the word "thus" at the commencement of the final sentence of that paragraph was an impermissible non sequitur.

7. Secondly, Mr Connor said that if causation is to be a serious issue in the case it would need to be pleaded in the defence that there is an alternative cause of the Plaintiff's current condition. As part of the pleading objection, Mr Connor says that the Plaintiff has been taken by surprise that this issue is raised, in the absence of a specific pleading in the defence.

8. Thirdly, Mr Connor took me to the letter of instruction to which the First Report served 8 April 2010 was a response. He drew my attention to the fact that the letter of instruction did not seek that Professor Inder opine about causation at all, but rather that he address his opinion to the question of breach. Mr Connor said that the Defendants, accordingly, ought not be permitted to rely on the paragraph because the paragraph was not responsive to the questions posed.

9. Fourthly, Mr Connor also raised a potential prejudice by reference to a possible genetic cause, and said that the orders made by Johnson J on 10 August 2010 as to the genetic testing which the Plaintiff was to undergo pursuant to UCPR 23.4, had the effect that, once the tests came back showing that no abnormality was detected, the Defendants were precluded from raising a genetic cause as a possible cause. Although this submission by the Plaintiff went more to the more recent report of Professor Inder rather than the paragraph in the First Report, it is also relied upon as a basis on which I ought reject that paragraph.

10. The first and third objections can be shortly dealt with.

11. I consider that the relevance of the relevant paragraph of the First Report is germane to the issues in the case. Although the learning referred to refers specifically to newborns rather than babies generally, the fact that Professor Inder makes a connection between the learning and the Plaintiff's situation makes it relevant. No doubt there will be cross-examination of Professor Inder in due course as to the weight of the learning referred to and whether it assists in interpreting the MRI scans taken of the Plaintiff but this is a matter that goes to weight and not to relevance. In proceedings where breach of duty and causation are in issue, it would not be appropriate for me at this stage of the proceedings to reject a paragraph from an expert report which appears to be relevant to whether the Plaintiff can discharge her onus on causation.

12. As to the third objection, an expert witness who is bound to comply with the Code of Conduct in Schedule 7 to the UCPR is not strictly confined to the precise form of questions asked. In particular, such an expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert witness' area of expertise. Further, the expert witness' paramount duty is to the Court and not to any party in the proceedings. Clause 5(2) of Schedule 7 provides that if an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report. I consider that the paragraph which I have set out above falls within Clause 5(2) of Schedule 7 in that it appears that Professor Inder believes that the First Report may be incomplete without addressing the question of causation, notwithstanding that this issue does not arise directly in any question contained in the letter requesting the report.

13. The second objection requires greater elaboration. Mr Connor says further that, as I have set out above, it is necessary for the Defendants to plead an alternative cause in their defence because of the provisions of UCPR 14.14(2), which provides as follows:

"(2) In a defence or subsequent pleading, a party must plead specifically any matter:

(a) that, if not pleaded specifically, may take the opposite party by surprise, or

(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c) that raises matters of fact not arising out of the preceding pleading."

14. I do not accept this contention. Far from identifying a particular alternative cause, the Defendants will presumably seek to rely on the paragraph of the First Report in support of the proposition that the Plaintiff has not established that any act or omission of either or both of the Defendants has caused the Plaintiff's disabilities. The contents of this paragraph are essentially defensive. In particular the sentence "[X] does not demonstrate any abnormality on her MRI scans consistent with hypoglycaemic cerebral injury" appears to me to be a piece of evidence which is exclusively defensive in nature and might, if accepted, depending on the weight of other evidence going to the issue, prevent the Plaintiff from discharging her onus of proof on the question of causation to the requisite standard (on the balance of probabilities).

15. Mr Connor also submitted that it has taken the Plaintiff by surprise to have to face such evidence when the matter was not pleaded. He says that had it been pleaded the Plaintiff would have appreciated the gravamen of the relevant paragraph of the First Report. Mr Connor submitted that the Plaintiff made forensic decisions on the basis that her legal advisers did not understand that either the absence of abnormality on the MRI scans or the potential alternative causes to be matters on which the Defendants propose to rely.

16. In response to Mr Connor's submissions in support of his objection on the pleading ground, Mr Kirk, for the Second Defendant, tendered a bundle of material (marked Exhibit 2D 1 on the Motion) in which he sought to demonstrate that the matters raised in the paragraph set out above have been clearly in issue for some time. He also submitted that the First Report was served in accordance with the directions of the Court and that therefore there ought be no impediment (relating to time) to its being relied upon.

17. Mr Kirk drew my attention to Short Minutes of Order made by Johnson J on 22 February 2011, which were made by consent. Relevantly, order 2 provides that the time for service of the Defendants' expert reports be extended to 31 December 2010. This order amounted to a retrospective extension of time for service of the First Report. Mr Kirk says that the circumstance that the Plaintiff has not qualified a neuro-radiologist to answer Professor Inder's opinion that the Plaintiff's clear MRI scans are inconsistent with cerebral injury arising as a result of hypoglycaemia is not the point, since the First Report was served in accordance with the Court's directions.

18. Mr Kirk then took me to various documents which set out the questions for the joint conferences of experts of various disciplines to seek to establish, as I am persuaded he has established, that the question of an alternative cause for the Plaintiff's disabilities has been in issue in these proceedings for some time. For example, he instanced the following questions for the joint expert conference of psychiatrists.

Question 1: "Does the Plaintiff have any current psychiatric diagnosis or diagnoses? Please specify."

Question 4: "If the answer to 1 is 'yes', is any psychiatric condition from which the Plaintiff suffers one that can occur in the absence of a family history of like conditions or permanent neurological impairment suffered as an infant?"

19. In the joint statement from the conference of psychiatrists dated 4 October 2011 the experts agreed that the most appropriate label was "PDDMOS" (Pervasive Developmental Disorder Not Otherwise Specified) rather than Asperger's Syndrome. They agreed that this psychiatric condition can occur in the absence of a family history of like conditions and permanent neurological impairment suffered as an infant, although Dr Krabman, the Plaintiff's treating psychiatrist, expressed the view that it was unlikely that the Plaintiff would suffer such psychiatric difficulties in the absence of a permanent neurological impairment.

20. There is a reference in the same paragraph to the normal imaging studies which had been performed for the Plaintiff, which I take (in the absence of other explanation) to be a reference to the normal MRIs which are referred to, inter alia, in the First Report and the paragraph set out above.

21. Accordingly, I consider that, on two fundamental bases, the Plaintiff's second objection to the paragraph set out above should not be upheld.

22. First, I consider that the material to which Mr Kirk has directed my attention, some of which I have referred to above, is sufficient to establish that the Plaintiff cannot reasonably have been taken by surprise that the Defendants are endeavouring to prevent the Plaintiff's discharging the onus of proof on causation by reference to matters such as the MRI imaging and the possibility of other causes being responsible for the Plaintiff's current disabilities.

23. Because the Plaintiff bears the onus on causation, it is not for the Defendants to prove what caused the Plaintiff's damage, although they may choose to do so as a way of preventing the Plaintiff from discharging her onus of proof. All the Defendants have sought to do in the instant case is to raise other possible causes, but not to identify any particular cause, or to postulate a probable cause. Since the Defendants have not taken it upon themselves (nor are they obliged to) to identify a positive alternative cause as distinct from a range of possible causes, I find that the matter did not need to be raised specifically in the pleadings.

24. As to the fourth objection, based on the orders made by Johnson J referred to above, it is necessary to provide some background to the argument made by Mr Connor on behalf of the Plaintiff. By notice of motion filed on 19 May 2010, the Defendants sought, relevantly, the following orders:

(1) That, pursuant to rule 23.4 UCPR, the plaintiff submits to an examination by Dr Ken Maclean, clinical geneticist, of Level 7, Park House, 187 Macquarie Street, Sydney [at a time and place to be inserted].

(2) That, pursuant to rule 23.4(2) UCPR, the plaintiff submits, within 7days of the assessment by Dr Maclean, to genetic testing as requested by Dr Maclean by the provision of a blood specimen at a paediatric pathology collection service to be nominated by Dr Maclean.

25. However, in the course of the hearing of the application on 27 July 2010, the Second Defendant handed up a more confined form of orders in a document entitled "Proposed Order", which read as follows:

"Pursuant to rule 23.4 of the UCPR the Plaintiff attends, within 14 days of this order, the SEALS Pathology Collection Service at Sydney Children's Hospital Randwick, to provide a 15 millilitre blood sample where that blood sample is then to be subject (at the direction of the second defendant) to the following tests:

a. genetic analysis of ABCC8 and KCNJ11 genes;

b. serum transferrin isoforms; and

c. high density SNP array comparative genomic hybridisation,

for the purposes of ascertaining:

1. whether the CHI diagnosed in the Plaintiff has an identifiable genetic basis;

2. whether the diagnosed CHI is connected to a genetic disorder such as congenital disorders of glycosylation or "CDG"; and

3. whether the plaintiff suffers from genomic disorders which may explain her developmental and language disorder."

26. The order ultimately made by Johnson J was in accordance with the proposed order set out above. Mr Connor argued before me that the Defendants had elected to confine their application for tests to a limited range of tests and were thereby precluded from raising a possible genetic cause since none of the tests which were administered pursuant to the order detected any abnormality.

27. As I see the contest that occurred in connection with the application for genetic testing before Johnson J, it may be that the Defendants sought a more confined order from the Court than originally sought because they thought that it might enhance their prospects of obtaining an order at all. Their form of order did not, in my view, amount to an abandonment of any genetic cause other than that which might have been revealed by the testing ordered by the Court.

28. Furthermore, I consider the words "for the purposes of ascertaining" in the order made by Johnson J set out above are significant. Here, "ascertaining" means "finding out" or "exploring" rather than determining as a final matter. Because of the confined nature of the tests ordered (and, as I understand it, conducted), it is not possible from the results of those tests to exclude any and every genetic cause. Nor did the Defendants, by their conduct, estop themselves from raising genetic causes.

29. Accordingly, I do not consider that either the form of the order made by Johnson J or the way in which it came about precludes the Defendants from raising other alternative causes, including ones with a genetic basis.

30. As Mr Connor's request for reasons is presently, as I understand it, confined to my refusal of the order sought in prayer 1 of the Plaintiff's Notice of Motion filed on 28 October 2011, I do not propose to address my reasons for rulings on other prayers unless a request is made that I do so.

31. For the foregoing reasons, I declined to rule that the identified paragraph in the First Report was inadmissible.

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