Prudence McDonald gave birth to Matthew McDonald in 1995. Matthew was later discovered to have suffered a hypoxic brain injury.

He alleged (through his mother who was his co-plaintiff and litigation guardian) that his condition was a result of a breach of duty by the defendants: Dr S Ng and the Campbelltown Hospital. A series of tests were conducted on Matthew to determine whether his condition was genetic. These all returned negative. However, after the plaintiffs refused the latest genetic test, the defendants applied to the court for an order requiring whole genome testing.

Background Facts

Matthew McDonald is 23 year old man who allegedly suffered hypoxia (deficiency in oxygen) during his birth, leading to a hypoxic brain damage. Mr McDonald and his mother Ms McDonald alleged that Matthew's evolving microcephaly, developmental delay, intellectual disability and cortical blindness are due to birth-related asphyxia. It was alleged that this was as a result of a breach of duty by the Campbelltown Hospital and Dr Ng. The plaintiffs allege that the brain damage was from the mismanagement in the period leading to Matthew's birth and during the birth itself.

This allegation was denied by both the doctor and the hospital. They said however, that even if there was a breach of duty on their part which caused the hypoxia, the hypoxia did not cause Matthew's brain damage. Rather, they argued, his injuries and disabilities are congenital in origin and due to a genetic abnormality. As a result, a big issue at trial will be causation – the extent to which any proved breach by the doctor and/or the hospital caused the injuries suffered by Matthew.

Matthew had already undergone three rounds of genetic testing to determine whether there was a genetic basis for his injuries and disabilities. All these testing came back negative. The first testing took place in March 2003. The second one was performed in December 2005, and the last one in February 2017. None of these revealed any genetic abnormality. Based on the opinion of Associate Professor Michael Fahey, a paediatric neurologist and clinical geneticist, the hospital and Dr Ng sought that Michael undergo a 'whole genome testing'. This test involved mother and child submitting to a blood test. The expenses were to be paid by the hospital and Dr Ng.

The plaintiffs opposed this testing, pointing out that it was still at the research stage and that the result would be too uncertain and speculative. They relied on the report of a paediatrician and clinical geneticist who opined that the test would be difficult. The defendants on the other hand relied on the report of a similar expert which said that the test may reveal a genetic cause for Michael's condition.

Relevant Law

Rule 23.4 of the Uniform Civil Procedure Rules of New South Wales ('the UCPR') provides that the court may make an order for medical examination. When this order is made, the legislation requires that a person 'must do all things reasonably requested … by the medical expert for the purposes of the examination.' The UCPR relevantly provides that this rule applies in proceedings where 'a person's physical or mental condition is relevant to a matter in question'.

The court considered several cases on this section of the UCPR. One of the cases it considered was the case of Rowlands v State of New South Wales where it was held that testing pursuant to the above rule, could not be used for a collateral purpose such as testing a party's credibility. It must be relevant to the party's physical or mental condition where such is in issue in the proceedings. There were no issues as to the relevance of Matthew's physical and mental condition to these proceedings.

Findings

Justice Harrison of the Supreme Court of New South Wales noted that because causation is the central issue in these proceedings, the damages could be substantial if it was established. It was accepted that there was sufficient evidence that the proposed whole genome testing has the capacity to assist in the determination of causation. If the court refused to order the genome testing, the defendants will have been denied the opportunity to further investigate the central issue of causation. Her Honour therefore found in favour of ordering the plaintiffs submit to the test.

Her Honour noted that the present proceedings did not require her to be, nor was she, satisfied that the proposed testing will be decided in the defendants' favour. She further stated that once the report from this testing is served, the plaintiffs will have the opportunity to challenge its admissibility in court. The parties have the ability to object to the report based on their expert opinions.

Her Honour exercised her discretion and made an order pursuant to rule 23.4 of the UCPR, requiring the plaintiffs to each, provide a blood sample for the purposes of whole genome testing. The costs in the proceedings were reserved.