Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital; Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital

1. [1]

   Mr and Ms Fiore and their son bring claims for damages in negligence against the Heath District, Crystal Bubs Pty Ltd and Mr Jordan, its sole director and shareholder. It is claimed that he is one of the sonographers who undertook ultrasound studies which failed to detect that the child was suffering Trisomy 21 before he was born with Down Syndrome in June 2016.

2. [2]

   Amongst other things it is claimed that Ms Fiore accepted the Health District’s medical professionals’ advice that she should undergo obstetric ultrasound studies in February and March 2016 against the risk of Down Syndrome and other defects. Further, that:

3. [3]

   By their motion Crystal Bubs and Mr Jordan seek orders that the question of their liability be decided separately and before any other issues, that being said to depend on whether they owed the plaintiffs a duty of care and if they did, the scope of that duty. The orders are opposed by the plaintiffs, but the Health District did not wish to be heard on the motion.

Issues

1. [4]

   The principles which apply to the resolution of an application under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question were not in issue. In exercising that power, the Court must give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just quick and cheap resolution of the real issues in the proceedings, taking into account the objects of case management specified in s57; what the dictates of justice require, having regard to the matters specified in s58(2); as well as the elimination of delay and proportionality of costs: ss59 and 60.

2. [5]

   Even so an order of the kind sought is not lightly made, given the difficulties that can result, as apparent savings in time and expense may prove to be illusory: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 (2001) 178 ALR 634 at [168]-[171]. This can be especially so where credit issues arise to be resolved on both liability and damages: Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4].

3. [6]

   In this case there are also both factual and legal issues necessary to resolve on the question of liability, including as to the nature of the services which Crystal Bubs and Mr Jordan offered and provided. Whether the representations Ms Fiore claims she relied on were made; what they each said at relevant times; the nature and extent of any duty owed; and whether it was breached are also in issue.

The evidence

1. [7]

   Mr Jordan has sworn two affidavits in which he deposes amongst other things that:

2. [8]

   On that evidence it is obvious that the separate determination of the liability of Crystal Bubs and Mr Jordan is important to them. This is a relevant, but not decisive consideration.

3. [9]

   Ms Fiore has sworn an affidavit deposing that her son was born at Nepean Hospital in June 2016 after care provided at the Nepean Antenatal Clinic. She received postnatal care at Mr Druitt Blacktown Hospital. At birth her son’s atrioventricular canal defect was not diagnosed, with the result that he suffered sleep apnoea, adenoid hypertrophy, substantially delayed speech and ability to walk and a global delay in development.

4. [10]

   The defect was diagnosed in late 2017 and successfully treated with surgery in February 2018, when he was aged about 20 months.

5. [11]

   Ms Fiore had first used Crystal Bubs service in late 2011, after “the usual morphology scan”, because as first time parents she and Mr Fiore wanted a second opinion and clearer view of their child. They found the Crystal Bubs “‘A Peak of U” website, which offered a one of a kind advanced machine which provided superior images to the 2D images offered elsewhere in regular clinics.

6. [12]

   The screen shot of part of the website annexed to her affidavit was undated, but referred to A Peek of U having been introducing parents and their families to babies “for the past 10 years”. Given Mr Jordan’s evidence, it does not seem that this was a screenshot of the website in 2011, but that does not now have to be resolved.

7. [13]

   The site there offered “Bonding Ultrasound” and did not refer to medical ultrasounds, but under the heading “Owner Clinical Specialist” it was said:

8. [14]

   Ms Fiore said that in 2013 when she was pregnant with her second child she spoke to Mr Jordan, in order to get a second opinion about a scan from Nepean Hospital which indicated that the baby had a small arm bone, which could have been a sign of Down Syndrome. A professor had conducted a second ultrasound which was said to be fine, but she then wanted a more thorough scan, which he agreed to provide, telling her his 3D/4D machine could pick up on defects such as heart defects and cleft palates.

9. [15]

   Ms Fiore said that she thus understood that Crystal Bubs and Mr Jordan could take and interpret scans and pick up and report on abnormalities and that the A Peek of U service was “equivalent to a professional medical service and was using superior technology”. They relied on Mr Jordan’s assurances and obtained a scan “which was reported as normal”.

10. [16]

    In May 2013 Ms Fiore had had a morphology scan at Nepean Antenatal clinic which also reported possible short forearm bones, which was indicative, but not conclusive of, possible Down Syndrome. The hospital referred them for another scan in September and they were advised that there were no signs of abnormalities and that the original sonographer had written the incorrect calculations. It was to reassure themselves that Mr and Ms Fiore wanted another opinion and again approached A Peek of U, not as the result of any referral by the hospital, but in reliance on Mr Jordan’s previous statements.

11. [17]

    In 2016, Ms Fiore again approached Mr Jordan and had a conversation to the following effect:

12. [18]

    Ms Fiore did not refer to any scans undertaken by the hospital, but it appears to be common ground that they were also taken. She said that she understood in 2012 and 2013 that “we would be getting a medical scan appropriate for the serious purpose of diagnosis of defects”, which was why she returned to Crystal Bubs. She also said:

13. [19]

    When the scan was undertaken she and her husband were shown the four chambers of the heart, amongst other features and Mr Jordan said words to the effect of:

14. [20]

    Ms Fiore also said:

The application must be refused

1. [21]

   There is no issue on this evidence that the relevant facts are not agreed. To the contrary, they are in significant dispute and there is a resulting issue as to Ms Fiore’s and Mr Jordan’s credit, on which the question of the existence of the claimed duty will turn.

2. [22]

   In the circumstances I am satisfied that the application for determination of a separate question cannot justly be granted.

3. [23]

   Undoubtedly if the issues lying between the plaintiffs and Mr Jordan and Crystal Bubs are resolved in the way for which he contends, he will be saved considerable time, trouble and expense.

4. [24]

   The parties agreed that Ms Fiore’s credit, on which the plaintiffs’ case on both liability and damages in part depends, will also be relevant to the determination of the claims advanced against the Health District. Thus determination of the proposed separate question will not be determinative of her credit. It is also therefore relevant that the remaining issues will potentially have to be resolved by a different judge.

5. [25]

   It follows that fairness to all of the parties in granting the separate hearing which Mr Jordan and Crystal Bubs seek, is not beyond question: Tepko at [170].

6. [26]

   Given the position as to credit this is a case like ABB Engineering Construction Pty Ltd v Freight Rail Corp [1999] NSWSC 1037, where Rolfe J’s reasons for refusing the application succinctly explain why in this case the same conclusion must be reached. Amongst other things his Honour discussed at [15]-[17]:

7. [27]

   These are also powerful considerations in this case. In the result I am satisfied that granting the application would not further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in these proceedings, nor would it be consistent with what the dictates of justice require in all of the circumstances I have discussed.

Orders

1. [28]

   For these reasons the motion is dismissed.

2. [29]

   The usual order under the UCPR is that costs follow the event, which in this case is an order that Crystal Bubs and Mr Jordan bear the plaintiffs costs of the motion, as agreed or assessed. Unless the parties approach to be heard on costs within 7 days, that will be the Court’s order.