KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891

KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891

The Court held that sufficient evidentiary foundation existed to warrant the order for genetic testing under Rule 23.4 UCPR. The proposed tests are relevant to the causation questions at the heart of the proceeding, are not a mere fishing expedition, and facilitate the just, quick, and cheap resolution of the real issues. Although late in the proceedings, no hearing date had been set, and the level of intrusion from providing a blood sample was not unjustifiably high. The appropriate use of discretion and the case management objectives of the Civil Procedure Act 2005 supported granting the application.

Parties
Plaintiff: KF By Her Tutor RF; First Defendant: Royal Alexandra Hospital for Children known as the Children's Hospital Westmead; Second Defendant: Brian Kearney
Jurisdiction
Australia
Judgment Date
10 August 2010
Procedural Posture
Interlocutory Application in Personal Injury/professional Negligence Proceedings / Interlocutory (application for Order for Medical/genetic Examination Prior to Trial)
Outcome
Application granted. Order made for medical/genetic examination of the plaintiff as requested by the Second Defendant. Plaintiff to pay the Second Defendant's costs of the application. No order as to costs for the First Defendant.
Legal Topics
Medical Examination Orders, Admissibility of Genetic Evidence, Damages—personal Injury, Duty of Care—hospital/paediatrician, Practice and Procedure—interlocutory Applications, Case Management, Causation of Injury
Civil Procedure Torts Professional Negligence Medical Negligence Medical Examination Orders Admissibility of Genetic Evidence Damages—personal Injury Duty of Care—hospital/paediatrician +3 more

Case Brief

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Parties

KF By Her Tutor RF

Plaintiff

Royal Alexandra Hospital for Children known as the Children's Hospital Westmead

First Defendant

Brian Kearney

Second Defendant

Procedural Posture

Interlocutory Application in Personal Injury/professional Negligence Proceedings / Interlocutory (application for Order for Medical/genetic Examination Prior to Trial)

Legal Issues

  1. 1 Whether an order for genetic testing of the plaintiff should be made pursuant to Rule 23.4 of the Uniform Civil Procedure Rules 2005 to determine causation in personal injury proceedings.
  2. 2 Whether the timing and nature of the Second Defendant’s application for medical examination precludes the making of such order owing to delay or insufficient evidentiary foundation.
  3. 3 Whether the proposed testing is relevant and not unduly intrusive and whether discretionary factors under the Civil Procedure Act 2005 favour the order being made.

Ratio Decidendi

The Court held that sufficient evidentiary foundation existed to warrant the order for genetic testing under Rule 23.4 UCPR. The proposed tests are relevant to the causation questions at the heart of the proceeding, are not a mere fishing expedition, and facilitate the just, quick, and cheap resolution of the real issues. Although late in the proceedings, no hearing date had been set, and the level of intrusion from providing a blood sample was not unjustifiably high. The appropriate use of discretion and the case management objectives of the Civil Procedure Act 2005 supported granting the application.

Court Disposition

Application granted. Order made for medical/genetic examination of the plaintiff as requested by the Second Defendant. Plaintiff to pay the Second Defendant's costs of the application. No order as to costs for the First Defendant.

Orders

  • Plaintiff to attend, within 28 days, at SEALS Pathology Collection Service, Sydney Children's Hospital Randwick, to provide a 15 millilitre blood sample for genetic analysis of ABCC8 and KCNJ11 genes, serum transferrin isoforms, and high density SNP array comparative genomic hybridisation.
  • Testing to ascertain: (1) whether diagnosed CHI has identifiable genetic basis; (2) whether diagnosed CHI connected to genetic disorder such as congenital disorders of glycosylation; (3) whether plaintiff suffers from genomic disorders which may explain developmental and language disorder.