Judje v Western Sydney Local Health District

This application is made in the context of medical negligence proceedings. The plaintiffs are the parents of Aadesh Judje. Aadesh was born with a Congenital Diaphragmatic Hernia. He suffered an antepartum haemorrhage. He has cerebral palsy. It is not in issue between the parties that Aadesh is profoundly disabled.

The plaintiffs have advanced a claim for damages for mental harm, as well as damages for the wrongful birth of Aadesh. The claims arise from an alleged failure to recognise the features of Congenital Diaphragmatic Hernia on an ultrasound performed prior to Aadesh's birth.

The first aspect of the plaintiffs' claims has been resolved. Orders have been entered by consent, pursuant to which the plaintiffs have been awarded damages for the mental harm that they claim to have suffered. There remains a dispute between the parties regarding the other aspect of the plaintiffs' claim, being the entitlement to economic loss consequential upon the wrongful birth of Aadesh.

The matter is listed for hearing in February 2027, with an estimate given by the parties of five days. When listed, it was contemplated that that hearing would address all issues in dispute between the parties.

It is in this context that the plaintiffs have brought an application for the determination of eight questions separately, and in advance of the hearing.

Seven of those questions were identified by the plaintiffs in their notice of motion as follows:

At the hearing before me, the plaintiffs foreshadowed an intention to add a further question; going to whether the defendants are estopped from disputing that its negligence "caused", the additional losses sought to be recovered by the plaintiffs by reason of the orders made to reflect the partial compromise of the plaintiffs’ claim.

It was said by the plaintiffs that determining these questions separately would result in potential cost savings because:

The defendants resisted the plaintiffs’ application. They submitted that the separate determination of the proposed questions would be inappropriate and would potentially result in an increase in the costs ultimately expended by the parties.

The plaintiffs drew my attention to the decision of Kirby P in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, placing particular emphasis on the following passages at 606-607:

Such observations are now axiomatic. Nevertheless, in this case it is the plaintiffs who must establish that separate determination is warranted and desirable: Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054 at [22].

The starting point is that all issues in proceedings should be decided at one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141. The power to order separate determination of a question should be approached with caution – Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] – and with an eye to the risk that any appeal might give rise to fragmentation and potential delay, each of which should be avoided: Forrest v Yuncken at [37].

Finally, and for good reason, courts are encouraged to determine all issues in a trial to assist the appeal process and obviate the need for a retrial in the event that error is identified: Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at [113].

In the present case, neither party proffered an undertaking to the effect that no appeal would be brought from the separate questions once determined: cf CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999 at [16]. To the contrary, both parties foreshadowed the likelihood of an appeal from any answers given to the proposed separate questions; having regard to both their novelty and the centrality of those answers to what remains of the plaintiffs’ claim. This is not intended as a criticism of either party. However, it highlights the risk that any such appeal would result in undesirable fragmentation of the proceedings.

It was not suggested that the determination of the proposed questions would have the effect of disposing of the proceedings as a whole or otherwise avoiding the necessity of a lengthy trial. In this respect, I note that the hearing of all issues is currently expected to take only 5 days.

I am not satisfied that answering any of the plaintiffs’ questions separately and in advance of the final hearing would facilitate any agreement on the quantification of the damages referable to the disputed heads of damage. A dispute about to the recoverability of particular head of damage does not preclude an agreement on the quantification of such damages should they be recoverable.

Absent agreement on issues of quantum, it was said that the parties will be required to incur the costs associated with expert conclaves and the preparation of joint reports. Different estimates were proffered in relation to these costs.

Both parties are obliged by s 56 of the Civil Procedure Act 2005 (NSW) to narrow any dispute in relation to the quantification of damages to those matters genuinely in contest between them and their respective experts. This obligation clearly extends to their arrangements for expert conclaves and joint reports.

Determining the plaintiffs’ questions separately would not remove the need to determine any residual dispute about the quantification of damages. Whatever answer might be given to the questions proposed by the plaintiffs, it will remain necessary for damages to be assessed, against the possibility that the answer to any threshold question is found by an appellate court to be wrong.

Finally, it is in my view preferable that the questions of law identified by the plaintiffs be determined in their proper factual context.

In these circumstances, I am not satisfied that the determination of separate questions is appropriate.

I make the following orders: