Doyle v Corporation of the Sisters of Mercv & Ors [2001] QSC 155

O\· 1SS- t\73S ~1 (~Afl State Reporting Bureau {P., Queensland Government ~ Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No S934 of 1999 MATTHEW RAYMOND DOYLE (AN INFANT BY H~S LITIGATION GUARDIAN SHARON JEAN DOYLE) and THE CORPORATION OF THE SISTERS OF MERCY OF THE DIOCESE OF TOWNSVILLE and MATER MISERICORDIAE PRIVATE HOSPITAL TOWNSVILLE (A FIRM OR BUSINESS NAME) and DR SALVATORE CATALANO TOWNSVILLE .. DATE 02/05/2001 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date: 3 / 5 / 01 Plaintiff First Defendant Second Defendant Third Defendant ITh Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 5 -- 02052001 T4/LB M/T TSVSCl/2001 (Cullinane J) 1 HIS HONOUR: This application is made by the third defendant seeking an order that the first and second defendants provide disclosure of: (a) All records with respect to available staff to assist during a Caesarean section between certain times on 27th January 1995 and; (b) all records with respect to all other deliveries being taken at the first and second defendants' hospital during 10 the same period. The application proceeded upon the basis of letters exchanged by the solicitors for the respective parties. The relevant parts of the plaintiff's pleading against each of the ~elevant defendants is set out in these letters. The plaintiff makes the same allegations against each of the defendants and these appear, as I have said, in the letters. 20 Effectively, the allegations are that there should have been an immediate Caesarean section carried out as soon as possible after 5.30 p.m: on 27 January 1995 or that by failing to deliver the plaintiff by Caesarean section at about 10.05 p.m. on 27 January 1995, or by 10.30 p.m. on that date at the latest, the defendants were negligent. By his defence, the third defendant who performed the Caesarean section alleges that an immediate Caesarean section 30 was not indicated soon after 5.30 p.m. on 27 January 1995 and, 2 JUDGMENT -- 2 of 5 -- 02052001 T4/LB M/T TSVSCl/2001 (Cullinane J) on the evidence then available, was contraindicated, and that there were no signs which would have indicated the need for a Caesarean section during or at the times pleaded, and makes a positive allegation that, when signs of foetal compromise did occur, delivery by Caesarian section would have unnecessarily delayed the birth of the plaintiff and resulted in a non- acceptable risk to the mother. The plaintiff does not make any allegations against the first 10 and second defendants that there was inadequate staff to assist at a Caesarean section between the times referred to in the application, nor is there any allegation that there was no theatre available to perform such a procedure. These matters, it would seem, are what the request for disclosure by the applicant is directed towards. No doubt, if the third defendant was negligent in any of the respects alleged by the plaintiff, then his inability to perform the procedure in any case during the relevant periods 20 may be a matter of significance in terms of the plaintiffs establishing any causal connection between such negligence and the injuries sustained by the plainti~f. It may also be a matter of significance in terms of the respective degrees to which each defendant, if found negligent, was responsible for the plaintiff's injuries, if these factual issues were open for consideration. The third defendant has given a notice in form 15 of the approved forms to the Uniform Civil Procedure Rules under Rule 30 208 of those Rules. 3 JUDGMENT -- 3 of 5 -- 02052001 T4/LB M/T TSVSCl/2001 (Cullinane J) The first and second defendants have not given a similar notice to the third defendant. As will be seen from form 15, the form states: "This claim is made relying on the plaintiff's allegations against you". Rule 208, which is headed, "Contribution Under Law Reform Act 1995", provides: "If the only relief claimed by a defendant is contribution under the Law Reform Act 1995, section 6, 10 against another defendant, the defendant may file and serve a notice claiming contribution without further pleading". There is, as the pleadings currently stand, it seems to me, no issue raised by the plaintiff against the third defendant in relation to the matters, the subject of the claim for discovery and there are no issues between any of the defendants on the pleadings relating to these issues. The latter follows from the former, given that form 15 limits 20 the allegations in support of the claim for contribution to the allegations made by the plaintiff against the defendant, from whom contribution is sought. It may be possible for the applicant to broaden the issues, so as to raise claims of the kind which might make disclosure of these documents obligatory, by proceeding under Rule 206. However, this is not what has occurred here and it is not necessary to say anything further on this subject. 4 JUDGMENT 30 -- 4 of 5 -- 02052001 T4/LB M/T TSVSCl/2001 (Cullinane J) As the issues stand, the documents are not directly relevant to any of them. The result will be that the application is dismissed with costs to be assessed. 5 JUDGMENT -- 5 of 5 --