Portia Gatti bhnf Rebecca Gatti v Calvary Health Care Riverina Limited

1. [1]

   HIS HONOUR: Portia Gatti was born on 1 May 2008. Her birth was attended by a suspicion that she may have developed cerebral palsy secondary to viral septic shock and complicated coagulopathy, severe metabolic acidosis and pre renal failure. The statement of claim commencing these proceedings was accompanied by a report from Associate Professor James Tibballs dated 29 July 2010 in compliance with UCPR 31.36. His conclusions were expressed succinctly as follows:

2. [2]

   The statement of claim as originally filed named only Calvary Health Care Riverina Limited as a defendant. The particulars of negligence alleged against it were these:

3. [3]

   On 23 July 2012 an amended statement of claim was filed joining Dr Natalie Snyman as a second defendant. The particulars of negligence alleged against the second defendant were these:

4. [4]

   When the matter came before me on 6 February 2015 I was informed that I would be asked to approve a settlement of the proceedings which was to take the form of an application by the plaintiff for leave to discontinue against the first defendant. I was not at that time provided with material sufficient to permit me to form a view about whether or not it was appropriate to approve what the parties had proposed or to grant the leave that was sought. Accordingly, I directed that the matter return to me on 20 February 2015 and that proper material be filed in support of the application.

5. [5]

   When the matter returned I was provided with affidavits from solicitors Julian Patrick McGrath, Paul Baram and Campbell Jeremy, each sworn or affirmed on 19 February 2015. To the latter affidavit was annexed a report dated 22 October 2014 from Dr John Lawson, a paediatric neurologist. He was asked and answered two questions as follows:

6. [6]

   Mr Jeremy annexed a later report from Dr Tibballs dated 30 April 2012. Part of that report is in these terms:

7. [7]

   The application to discontinue the proceedings is made by the plaintiff and is supported by the first defendant. It is not supported by the second defendant to the extent that whereas the first defendant does not require payment of its costs, the second defendant does. In that last respect the second defendant has proffered the following offer as a basis upon which it will agree to what the plaintiff desires:

8. [8]

   Rebecca Gatti is the plaintiff’s mother and has commenced proceedings against the same defendants claiming damages for nervous shock arising out of the circumstances of Portia’s birth.

9. [9]

   UCPR 12.1 and UCPR 42.19 are in these terms:

10. [10]

    It will be apparent that the application for leave to discontinue is based upon the propositions that the plaintiff’s injuries and disabilities are effectively insignificant, as plainly revealed in the medical opinion supporting the application, and that there may in addition be associated difficulties in establishing at least a causal connection between those injuries and disabilities on the one hand and the breaches of duty alleged against each of the defendants on the other hand. The plaintiff neither wants to pay the second defendant’s costs if she discontinues against that defendant nor to be subject to the alternative costs conditions that the second defendant has proposed. The second defendant does not consent to the proceedings being discontinued only against the first defendant.

11. [11]

    The discontinuance of the plaintiff’s proceedings against the first defendant does not preclude her commencing fresh proceedings at a later time should it be thought appropriate to do so. The evidence does not indicate that the plaintiff’s medical condition is significant or stabilised and the liability issue is by no means clear. A grant of leave to the plaintiff as sought would preserve her entitlements as they currently exist without her having to endure the fact or the anticipation of constant medical examinations or the ever present concern to attend to litigation that might ultimately come to nothing. I accept that the administration and conduct of an infant’s proceedings are the responsibility of her tutor, and that the personal concerns of the tutor, whether as to a liability for costs or otherwise, are not relevant. It is relevant, however, that the plaintiff herself not be exposed potentially to years of litigious uncertainty and disruption when it may all prove to be unwarranted or unnecessary.

12. [12]

    In my opinion it is in the best interests of the plaintiff to grant her leave to discontinue the proceedings against the first defendant. It is not desirable that the plaintiff should be compelled to litigate against her will. I am prepared to grant that leave notwithstanding that the second defendant is an active party who does not consent to the discontinuance without a corresponding discontinuance against her or some form of costs order in her favour. It does not appear to me that there will be any injustice caused to the second defendant in the circumstances. It remains to be seen whether or not the orders that I propose influence or affect the progress or the outcome of what remains of the proceedings.

Orders

1. [13]

   I make the following orders:

   1. (1)

      Grant leave to the plaintiff to discontinue the proceedings against the first defendant.

   2. (2)

      Make no order as to the costs of the proceedings as between the plaintiff and the first defendant to the intent that each of them will pay or bear her or its own costs.

   3. (3)

      Direct that the balance of the proceedings be listed before me for directions on 6 March 2015.