Sibraa v Sydney Childrens Hospital Network

By notice of motion the plaintiff, Karlee Jade Sibraa, seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules for the separate determination of the issue of liability.

The two defendants oppose the order which the plaintiffs seek. For the reasons which follow, I have decided to dismiss the application.

When she was about 16 months old, Karlee was admitted to the Children's Hospital Westmead for the purpose of heart surgery. That surgery took place on 4 December 2001.

Immediately prior to, and for the purposes of that surgery, a triple lumen central venous cannula was inserted into Karlee's right internal jugular vein. According to one version of events, during the course of the surgery Karlee's condition deteriorated suddenly and rapidly. She had two cardiac arrests and suffered a hypoxic brain injury.

According to another version of the events, on the day following the surgery whilst she was in the paediatric intensive care unit following the surgery, and whilst the intravenous line was being flushed, she suffered a cardiac arrest which was followed by a second cardiac arrest later on that day. As a consequence of the two cardiac arrests she sustained a hypoxic brain injury.

For the purposes of this motion, the facts which surround the occurrence of the two cardiac arrests that Karlee suffered are not directly relevant. What is of significance is that her brain injury occurred when she was only 17 months old and, accordingly, still in the very early days of her physical and mental development.

Proceedings were commenced in this Court in 2004. It seems that the parties have obtained all of the evidence necessary to enable the proceedings to be heard. A mediation which took place over a number of days was recently concluded.

The parties remain at issue and now require a hearing.

The plaintiff is now 12 years old. It does not seem to be substantially in dispute that she has suffered a hypoxic brain injury. An MRI scan performed on 9 December 2010 shows evidence of extensive infarction in the distribution of the right middle cerebral artery with encephalomalacia involving the cortex and the white matter in the posterior part of the right frontal lobe and the adjacent middle frontal gyrus.

According to a report of Dr Michael Harbord dated 9 February 2011, he observed that Karlee had clinical evidence of mild left hemiparesis and a mild intellectual disability with moderate speech delay. Dr Harbord's opinion is that the brain damage is permanent. He says that Karlee has a potential as a consequence of this to suffer from epilepsy at some time in the future. Dr Harbord is also of the opinion that Karlee's reduced gross motor coordination abilities, which derived from her mild left hemi paresis, are permanent and unlikely to improve.

Of her intellectual impairment, he says: "However, in my opinion the major impediment for Karlee is her intellectual disability which will substantially impact on her academic performance throughout school and the likely options for employment in the mainstream workforce when she finishes secondary school. The full extent of her intellectual impairment may not be evident until she is in the upper years of secondary school at which time a psychologist or neuropsychologist would be in a better position to advise regarding her likely employment prospects".

Dr Harbord expresses concern about Karlee's capacity in due course to live independently.

The plaintiff has qualified Dr Anna Mandalis, a clinical neuropsychologist. She reported on 29 November 2010. Dr Mandalis reached her conclusions after thorough and comprehensive testing and a clinical assessment. He conclusions are:

Dr Mandalis expressed these opinions as to Karlee's progress namely:

Dr Mandalis concluded with this opinion: "Karlee's long term prognosis is best determined by repeat psychometric assessment towards the end of secondary school, once her cognitive profile has stabilised and she has had the opportunity to benefit from interventions. It is estimated from the history and current assessment results that Karlee will not be able to compete for open employment or have the cognitive skills to progress to University education".

The most recent expert opinion available to the Court is that contained in the report of Professor R P Mattick, a clinical psychologist, dated 16 March 2011. Amongst other conclusions Professor Mattick said: "12.15.6: In terms of work in the future I think that Karlee is likely to be able to work in a number of different positions. She will necessarily undertake unskilled work but she is, I believe, capable and competent to carry out a range of tasks including working in positions such as waitressing, as a kitchen hand, packing goods and she can carry out process work which does not require skill and is repetitive and structured. 12.15.7 I do not believe that she is likely to improve or recover from her current difficulties although I would be interested in seeing her progress when she is approximately 15 or 16 teens years of age".

In summary, Professor Mattick concluded "12.16.5: "Reassessment in three to five years may be helpful to determine whether the passage of time and further structured learning has improved her cognitive capacity".

According to the most recently updated statement of particulars, the plaintiff claims:

She claims other items of damage relating to future medical and therapeutic, car, computer and technology aids, housing renovations and other equipment and aids. Of course, she also claims non-economic loss.

The plaintiff's claim, if she succeeds in recovering substantially all that she particularises, is a very substantial one.

This application is made in reliance on r 28.2 of the Uniform Civil Procedure Rules. In exercising the discretion conferred on the Court by that rule it is essential that the Court gives effect to the provisions of s 56 of the Civil Procedure Act 2005.

By s 56(2) of the Act, the Court is obliged to seek to give effect to the overriding purpose of the Civil Procedure Act and Rules. It is to be noted that the overriding purpose of the Act and rules is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings".

The starting point for the consideration of a motion such as this is that it is ordinarily appropriate that all issues in proceedings should be disposed of at the one time: see Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5] per Justice Johnson.

I have elsewhere described in some detail the principles to be applied by the Court in considering an application for the separate determination of issues. I will not repeat here what I have said elsewhere, but I will content myself to apply the same principles: see Thiering v Daly [2011] NSWSC 1345 at [19]-[27] inclusive.

As these principles make clear it is for Karlee to persuade the Court in this case that it is in the interest of justice that, contrary to the usual position, the issues relating to liability ought to be heard and determined in advance of all other issues in the proceedings.

Senior Counsel for the plaintiff submits that, in reliance on some of the remarks set out in medical reports to which I have earlier made reference, that the Court would be satisfied that those experts agree "that the plaintiff's condition is far from being stabilised in terms of her ultimate capacity to care for herself".

Senior Counsel in apparent reliance upon some remarks in Ritchie's Uniform Civil Procedure NSW at [26.4.35], submits that orders of the kind sought in this case are a relatively frequent occurrence. This statement in Ritchie's Uniform Civil Procedure NSW is regrettably not based on a large number of examples of decisions of this Court and does not reflect either the authorities or the ordinary course in this Court.

Only two decisions in this Court are cited in Ritchie's Uniform Civil Procedure NSW. One is of Master Sharpe, as his Honour then was, in February 1980. The other is my decision in Thiering to which I have already made reference. It is difficult to see how a reading of that decision could suggest that it is authority for the proposition cited by the authors of Ritchie's Uniform Civil Procedure NSW as I have set out above. On the contrary, as is apparent from [28]-[30] of Thiering, it was an unusual case which involved a determination in advance of a hearing, of particular identified legal questions which essentially turned on a plain question of statutory interpretation. No issue of liability arose in the case which was concerned with both an assessment of damages and a money claim for the value of services provided to a statutory scheme.

I reject the proposition advanced by Senior Counsel for the plaintiff that liability and damages issue are separately determined in this Court on many occasions.

The defendants opposed the plaintiff's submissions. The first defendant put that:

The second defendant accepted the submissions of the first defendant.

The defendants submit that since the position on the evidence is that whilst Karlee's final prognosis is not entirely known at present nevertheless her likely outcome is known and can therefore be assessed.

I am of the view that the plaintiff has failed to demonstrate that there would be any unfairness to her if the entirety of her proceedings were to be heard at one time in the usual way. In other words, she has failed to show that the interest of justice support the orders she is seeking. These are my reasons.

Firstly, the plaintiff's injuries have been entirely ascertained and have stabilised. She has been assessed as having a mild intellectual disability. Although there will need to be a careful consideration of all of the facts and circumstances in her case, that assessment is a sufficiently sound basis for evidence to be given about Karlee's likely future course and the likely extent of her disabilities. A calculation of damages based on these likelihoods is conventional rather than exceptional.

Secondly, if the separation of the issues of liability and damages was to occur and the trial of the issues of damages was to await the time which the plaintiff says is appropriate, namely at some time after an assessment is concluded, which is to be made towards the end of her secondary schooling, it is likely that such damages proceedings would be heard when the plaintiff is at least 17 or 18 years old.

A delay of 16.5 years between the tort occurring and when damages are finally assessed by a court, is a very, very long time which will in my assessment be unfair to all involved. As is well known, the effluxion of time affects memory and recall, it causes the quality of evidence to deteriorate and makes the Court's task of determining the issue much more difficult. It means that the overall quality of justice is adversely affected and to a significant extent.

Thirdly, by being adjourned for such a length of time, the overriding purpose of the Civil Procedure Act, being the just, quick and cheap resolution of all the real issues in the proceedings, could be not be achieved.

Fourthly, in the circumstances of this case, a separation of the issues as proposed by the plaintiff would not accord with the legal authorities on the issue or with the principles which apply to applications of this kind.

It is appropriate to acknowledge that this decision does not permit the medical practitioners to achieve a state of certainty about the plaintiff's prognosis which they feel would be desirable but those opinions are but one of the facts and circumstances to which this Court is obliged to have regard. In the balancing exercise which is necessarily involved in the exercise of the Court's discretion that feature does not carry determinative weight.

I am persuaded that the interests of justice require that all of the issues in the proceeding be determined at a single hearing. That part of the motion seeking an order for separate hearing is, therefore, dismissed.

As I have not yet heard full argument on the balance of the motion dealing with venue and because until the evidence is actually complete it is inappropriate to deal with such a motion, it would be appropriate to dismiss the entire motion noting that once the evidence is complete the plaintiff will be at liberty to, if so advised, renew the motion with respect to venue and have it determined on the basis that there has been no previous determination of that question on the merits.

I make the following orders: