SW v The Sydney Children’s Hospitals Network t/as Westmead Children’s Hospital

1. [1]

   HER HONOUR: By further amended summons filed 10 December 2021, the first plaintiff seeks orders for the transfer of five District Court proceedings to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).

2. [2]

   The proceedings which the first plaintiff seeks to transfer are:

   1. (1)

      District Court NSW Proceedings number 2020/00268211 SW v Westmead Children’s Hospital;

   2. (2)

      District Court NSW Proceedings number 2020/00213690 GS v Westmead Children’s Hospital; and

   3. (3)

      District Court NSW Proceedings number 2020/00181110 PW by his tutor JS v Westmead Children’s Hospital.

   4. (4)

      District Court NSW Proceedings number 2021/00307218 MS v Westmead Children’s Hospital.

   5. (5)

      District Court NSW Proceedings number 2021/00307226 PS by his tutor FW v Westmead Children’s Hospital.

3. [3]

   The first defendant does not consent to the transfer applications.

4. [4]

   The plaintiffs are SW, MS, PS by his tutor FW, GS and PW by his tutor JS. The first defendant is the Sydney Children’s Hospital Network t/as Westmead Children’s Hospital. The second defendant is Dr Sachin Gupta.

Background

1. [5]

   The facts that give rise to these proceedings are somewhat unusual. The following factual background has been adopted from the pleading in the statement of claim filed by the first plaintiff in the District Court on 15 September 2020.

2. [6]

   SW is the mother of EE born 4 April 2008, AE born 25 April 2009, WJ born 22 August 2010, PS born 16 December 2012 and WH born 22 November 2015.

3. [7]

   Prior to the matters pleaded in this Statement of Claim, other than EE and AE spending time with their father on weekends, EE, AE, WJ, PS and WH had at all times resided and lived in the care of SW and K (her husband).

4. [8]

   From birth PS experienced ill health, including recurrent severe pain, seizures, ataxia, encephalopathy; underwent many medical procedures including gastrostomy, jejunostomy, vesicostomy, endoscopy, biopsy, prolonged EEG and was diagnosed with a rare condition, Paroxsmal Excessive Pain Disorder.

5. [9]

   As a consequence of his ill health, including feed intolerance, numerous gastric and diarrhoea episodes, PS was admitted to hospitals, including the Westmead Childrens Hospital on many occasions, with episodes of significant distress.

6. [10]

   Within the precints of the Westmead Childrens Hospital is the 'Child Protection Unit' which provides teams of forensic, medical, counselling, psychological and other health services for children, young people and their families following allegations of child abuse and neglect.

7. [11]

   The multi-disciplinary teams in the Westmead Childrens Hospital include specialist medical and psycho-social health professionals. The 'Child Protection Unit' works within an interagency framework in partnership and with shared responsibility with the Department of Community Services, the Joint Investigation Response Teams (JIRT) and the Police.

8. [12]

   On each of the occasions, PS was admitted to hospital, SW accompanied and remained with him, while K stayed at their home to care for EE, AE, WJ and WH.

9. [13]

   On 12 December 2016, while PS was admitted to the Westmead Children’s Hospital, he had a Portacath implanted.

10. [14]

    The Portacath was used by the doctors and nurses employed by the first defendant to allow easy access to PS’s veins and Total Parenteral Nutrition.

11. [15]

    On 2 January 2017, following episodes of pain and diarrhoea, PS was admitted to the Westmead Childrens Hospital, 'Travellers Ward'.

12. [16]

    As with PS’s previous admissions to hospital, SW accompanied PS and remained with him during the period of his hospitalisation.

13. [17]

    On 8 January 2017, the medical staff of Westmead Children’s Hospital reported they were having problems with the Portacath, including that it would not flush.

14. [18]

    On the 11 January 2017, PS had a peripheral intravenous catheter inserted in his left arm.

15. [19]

    Because the Portacath was malfunctioning the Total Parenteral Nutrition was administered via the peripheral intravenous catheter.

16. [20]

    PS cotinued to have episodes of diarrhoea.

17. [21]

    On 5 February 2017, PS fell, falling onto his chest and the Portacath.

18. [22]

    On 6 February 2017, PS’s Portacath site was swollen and tender.

19. [23]

    On 7 February 2017, following a severe bout of gastric, PS went into septicaemic shock. Due to the septicaemic shock, PS was removed from the 'Commercial Travellers Ward' and admitted into the Intensive Care Unit in a critical condition.

District Court pleadings

1. [24]

   The statement of claim filed on 15 September 2020 in the District Court makes the following allegations.

2. [25]

   During PS’s admission to the Westmead Childrens Hospital, the first defendant, its doctors and nurses when making diagnoses, statements, reports and allegations concerning PS and/or the SW, owed PS and SW a duty of care, to ensure any diagnoses, statements, reports and allegations were informed, proper, well-founded, considered and based on the facts and the evidence then available.

3. [26]

   During PS’s admission to the Westmead Children’s Hospital, the first defendant, its doctors and nurses owed SW a duty of care, when making diagnoses, statements, reports and allegations concerning SW, to ensure any such diagnoses, statements, reports or allegations, were informed, proper, well founded, considered and based on the facts and the evidence then available.

4. [27]

   In breach of the duty of care it owed to the SW, the first defendant by its medical staff alleged, reported and made statements that PS's septicaemic shock was brought about by SW intentionally interfering with PS’s intravenous lines.

5. [28]

   In breach of the duty of care it owed SW, the first defendant by its medical staff alleged, reported and made statements that PS’s septicaemic shock was brought about by SW intentionally injecting faeces into PS's intravenous lines thereby causing him to fall into septicaemic shock.

6. [29]

   In breach of the duty of care owed to SW, the first defendant by its medical staff alleged, reported and made statements that:

   1. (1)

      SW manufactured or invented PS’s symptoms including his gastrointestinal symptoms,

   2. (2)

      SW overdosed PS with the drug Fentanyl.

   3. (3)

      SW fabricated the symptoms that PS was suffering.

   4. (4)

      SW had caused PS serious non-accidental injury.

7. [30]

   The allegations, reports and statements made by the medical staff of the first defendant were false.

8. [31]

   As a consequence of the false allegations, reports and statements made by the medical staff of the first defendant, SW was removed from the Westmead Children’s Hospital. SW was removed from the family home, PS, EE, AE, WJ and WH were placed into the care of the Department of Family and Community Services. SW was permitted to see the children twice per week for one hour and only on the condition that she was supervised during her time with the children. The care of the children was not restored to SW until 16 April 2018.

9. [32]

   In the alternative, the first defendant breached its duty of care and was negligent in that the medical staff of the first defendant disseminated allegations, reports and statements within the Westmead Children’s Hospital and to other entities including the Department of Family and Community Services, in circumstances where there was no factual basis or evidence for those allegations, reports and statements.

Procedural history

1. [33]

   On 15 September 2021, SW filed a statement of claim in District Court of New South Wales proceedings 2020/00268211 (“SW NSWDC Proceedings”) naming ‘The Sydney Children’s Hospital Network trading as Westmead Children’s Hospital’ as the only defendant.

2. [34]

   Since the filing of the statement of claim, SW has served 3 different proposed amended statements of claim in the SW NSWDC Proceedings on 7 May 2021, 18 August 2021, and 25 October 2021 respectively. The pleadings served on 7 May 2021 and 18 August 2021 are claims for damages for negligence and malicious prosecution.

3. [35]

   On 7 September 2021, SW filed a notice of motion seeking, leave to file an amended statement of claim in the form served on 18 August 2021. The notice of motion was fixed to be heard on 29 October 2021 in the District Court.

4. [36]

   On 28 October 2021, SW filed an amended notice of motion (“ANM”) seeking leave to file an amended statement of claim (“ASC”) in the form served on 25 October 2021.

5. [37]

   The ANM was listed for hearing before Russell DCJ on 29 October 2021. SW’s solicitor instructed Counsel at that hearing, and SW was represented by Senior Counsel and Junior Counsel.

6. [38]

   Moments before the SW NSWDC Proceedings was called on for hearing on 29 October 2021, SW’s solicitor was served with the summons.

7. [39]

   On 29 October 2021, Russell DCJ made an order that the ANM be stood over to 26 November 2021 for a directions hearing. His Honour made this order, over objection, on SW’s application. That application was based upon the submission that the summons ought to be determined first and two other proceedings which SW contended were related were also listed on 26 November 2021.

8. [40]

   His Honour granted SW’s application for an adjournment despite having said during the hearing words to the effect, ‘I acknowledge the force in the defendants’ submission that the pleadings in this court ought to be finalised before the transfer application is heard by the Supreme Court’.

9. [41]

   Russell DCJ also said words in the hearing to the effect, ‘If the plaintiff moved on the amendment application today, I would not grant leave to file it’.

10. [42]

    Counsel for the first defendant made an oral application to have the SOC struck out. His Honour refused that application for reasons which included that it was apparent that SW was not relying upon the SOC given that she was applying to amend it.

11. [43]

    In the summons, the SW also seeks to transfer the following District Court proceedings:

12. [44]

    GS is PW’s mother.

13. [45]

    In the GS Proceedings, the SW filed an AMN on 26 February 2021 by which she sought leave to amend her statement of claim. The latest iteration of the proposed pleading in respect of which GS seeks leave claims damages for negligence and malicious prosecution. Save for Sydney Children’s Hospital, it names defendants that are not party to the Kenny NSWDC Proceedings.

14. [46]

    The SW’s application to amend was fixed for hearing before Gibson DCJ on 10 August 2021.

15. [47]

    On that occasion, Her Honour made the orders enabling SW to serve a further proposed amended statement of claim by 24 September 2021 and adjourned the matter to 8 October 2021. Her Honour also made a notation with respect to ‘the plaintiff’s potential conflict of interest in relation to the separate proceedings concerning PW and the need for consideration for the hearings to run together’.

16. [48]

    On 8 October 2021, the District Court gave the first defendant until 15 October 2021 by which to file any notice of motion seeking dismissal of the GS Proceedings.

17. [49]

    On 15 October 2021, the first defendant filed a notice of motion for dismissal of the GS Proceedings.

18. [50]

    SW’s application for leave to amend and the first defendant’s application for dismissal were listed for hearing on 26 November 2021.

19. [51]

    This matter was listed for directions hearing on 26 November 2021. It is based on a statement of claim filed on 16 June 2020 in which claims for damages for negligence are made. Sydney Children’s Hospital Network is the only defendant.

Relevant legislation

1. [52]

   Section 140(1) of the Civil Procedure Act 2005 (NSW) reads:

2. [53]

   In BOC v MDL [2019] NSWSC 278, Hoeben CJ at CL summarised the relevant legal principles that apply to an application pursuant to s 140 of the Civil Procedure Act. His Honour at [17]–[19] stated:

3. [54]

   In Hau Shan v Fairfield City Council [2020] NSWSC 681, Button J at [14] said:

4. [55]

   The parties also relied upon s 29 of the Children and Young Persons Care and Protection) Act 1998 (NSW) (“Care and Protection Act”). Section 29 relevantly reads:

5. [56]

   The first plaintiff submitted that part of the evidence the plaintiffs seek to obtain is about the police investigation on each of the mothers of the two minor plaintiffs. Each police investigation was discontinued occasioning the plaintiffs and (each mother) significant expense in defending themselves.

6. [57]

   That evidence is inadmissible in the District Court and is only admissible in this Court: See Care and Protection Act s 29 1(d)(iii) and 29(1)(e).

7. [58]

   The first plaintiff submitted that the damages are beyond the jurisdiction of the District Court. This would be so even if consent of the defendants was sought to extend that jurisdiction.

8. [59]

   On quantum of damages alone, the cases ought to have been properly filed in the NSW Supreme Court; each of the infant plaintiffs suffered brain damage and shortened life expectancy. Each of the parents serious psychiatric harm due to their involvement and care of their respectively disabled children. That psychiatric harm included reduced capacity for employment and the capacity to care for their other children and destruction of family relationships including between the respective parents. Medical and psychiatric expenses for treatment of resultant psychiatric disorders in all of the parents. There were significant legal costs involved in the order of $80-120,000 incurred by GS in obtaining advice and defending the unfounded allegations made against her in the police investigation against her and in recovering her child and his other siblings.

9. [60]

   On 24 February 2022, Mr Weller, the solicitor acting for SW, filed an affidavit providing an opinion as to the quantum of damages for each plaintiff. They are as follows:

10. [61]

    The first plaintiff’s solicitor considered the likely damages that each plaintiff could be award under the relevant heads of damages: Non economic loss, economic loss or loss of income, domestic care both on a gratuitous and commercial basis, past and future treatment expenses, loss of superannuation and costs.

11. [62]

    He also considered that in the matters brought on behalf of PW and PS, the child plaintiffs, suffered life threatening physical injuries while patients in the Westmead Hospital for Children. He considered it likely that each child plaintiff and parent sustained significant psychological injury and trauma in addition to any physical injury. He also considered that there would be a risk of injustice if these cases were not transferred to the Supreme Court.

12. [63]

    He stated that in relation to a jurisdictional restriction which applies to adducing part of the evidence required. The restriction potentially deprives all plaintiffs the right to complete and unhindered access to all documentary evidence for the purposes of the case. This cannot be done from the District Court as in that forum the statue prevents the plaintiffs from fully adducing relevant records and evidence. Transfer to the Supreme Court of NSW will prevent this manifest injustice from occurring by allowing and facilitating all evidence relevant to the cases to be adduced for the benefit of all involved.

13. [64]

    The first plaintiff submits that it is a misconception by the defendants as they assert in their supplementary submissions that the plaintiffs rely upon Sullivan v Moody (2001) 207 CLR 562 alone. They do not. They are unnecessary in negligence and common law conspiracy and place no such reliance on that cause of action. Insofar as the plaintiffs' claims are in nervous shock, and that is only ever in part, they rely upon Annetts v McCann (1990) 170 CLR 596.

14. [65]

    The first defendant relies on the affidavits of Ms Helen Maamary affirmed on 8 November 2021, 2 December 2021 and 14 December 2021.

15. [66]

    It’s concern that has been expressed in correspondence with the plaintiffs’ solicitor, are as follows.

16. [67]

    First, the existing statements of claim in each of the proceedings below contain claims for personal injury damages. In this regard, the Court must be satisfied on the available evidence of the matters s 140(3)(b) of the Civil Procedure Act. There is an absence of evidence as to quantum in relation to each of the proceedings sought to be transferred. This has now been rectified.

17. [68]

    Secondly, and contrary to the plaintiffs’ written submissions dated 14 December 2021 at [7], s 29(1)(d)(iii) of the Care and Protection Act does not enable the plaintiffs to obtain documents that are otherwise prohibited from being produced under s 29(1)(e) of that act, irrespective of whether the proceedings are brought in the District Court or the Supreme Court. These are not proceedings in relation to a child or young person before the Supreme Court.

18. [69]

    In Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 (“Hayward”) at [61]-[76], the Court of Appeal held that “proceedings relating to the report” within the meaning of s 29(1)(f) of the Care and Protection Act can only be proceedings of the kind referred to in s 29(1)(d). Relevantly, under s 29(1)(d)(iii), reports or extracts from them are not admissible other than in “proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal”.

19. [70]

    At [68], the Court of Appeal in Hayward observed that the proceedings to which s 29(1)(d)(iii) refers “are all proceedings in which the subject matter is the ongoing welfare and well-being of the child”. The proceedings sought to be transferred to the Supreme Court contain claims for damages for personal injury and conspiracy. They do not concern the “ongoing welfare and well-being” of a child. An application to transfer the proceedings to the Supreme Court would not bring it within the class set out in s 29(1)(d)(iii).

20. [71]

    Finally, there are pending applications to amend the statements of claim in at least 2 of the District Court proceedings such that the Supreme Court does not presently know the nature of the cases to be transferred.

21. [72]

    While the defendants have no objection in principle to the transfer of the proceedings to the Supreme Court, they have been, and remain, concerned about the adequacy of the evidence on this application (especially as to quantum), the suggestion that a transfer is justified having regard to the terms of s 29(1)(e) of the Care and Protection Act which is not supported by Court of Appeal authority, and the timing of the application (having regard to the pending amendment applications before the District Court).

Resolution

1. [73]

   The facts and allegations in these proceedings are somewhat unusual. The first plaintiff’s solicitor has recently furnished his opinion as to quantum in each proceedings. The claims, prima facie exceed, the District Court threshold. Whether the first plaintiff can obtain access to the police investigation as to the mothers of the children is a matter for argument in this court. It is my view that the plaintiffs have shown that there is sufficient reason for these proceedings to be transferred from the District Court to this Court.

The result

1. [74]

   In accordance with para (1)(a)-(e) of the further amended summons filed 10 December 2021, the proceedings are transferred from the District Court to the Supreme Court.

Costs

1. [75]

   Costs are discretionary. In my view the appropriate order is that costs of the further amended summons be costs in the cause.

   1. (1)

      In accordance with paras (1)(a)-(e) of the further amended summons filed 10 December 2021, the proceedings are transferred from the District Court to the Supreme Court.

   2. (2)

      Costs of the further amended summons filed 10 December 2021 be costs in the cause.

   3. (3)

      These matters be listed together for a directions hearing at 9am before the Registrar, once the files are actually transferred from the District Court to this Court.