El-Mouelhy v Reid

[2020] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

El-Mouelhy v Reid [2020] NSWSC 676

Hearing dates:

27 May 2020

Decision date:

01 June 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)   The plaintiff is to attend the following examinations:

 

(a)   Dr Angelo Virgona on 9 June 2020; and

 

(b)   Dr Seamus Dalton on 2 June 2020.

 

(2)   The defendant is to serve any refresher evidence, in the form of further reports from Dr Virgona and Dr Dalton, by 30 June 2020.

 

(3)   The report by Dr Virgona is to be confined to his opinions concerning the issues raised in Questions 2(b) and (c) and Question 5 of the conclave report of Dr Virgona and Dr Roberts, dated 2 August 2018.

 (4)   Costs of the notice of motion are costs in the cause.

Catchwords:

CIVIL PROCEDURE – medical examinations – application for the plaintiff to attend medical and other examinations and for further expert evidence to be served pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) – whether refresher evidence required for upcoming hearing – whether application justified by the defendant instructing new solicitors – whether evidence from two experts on the on the same topic should be obtained – whether plaintiff will have adequate time to prepare reply to evidence – medical examinations and expert evidence ordered on a limited basis

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 23.4

Category:

Procedural and other rulings

Parties:

Nadia El-Mouelhy (Plaintiff)
Richard Reid (Defendant)

Representation:

Counsel:
E Romaniuk SC; S Roulstone (Plaintiff)
P Rooney (Defendant)

  Solicitors:
Martin Street Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2013/270358

Judgment

1. HIS HONOUR: By notice of motion filed on 30 April 2020, amended by leave at the hearing on 27 May 2020, the defendant seeks orders that the plaintiff attend certain examinations of a medical or therapeutic nature and orders extending the time within which the defendant is to serve any ensuing reports. The orders are sought by way of the defendant’s preparation for a hearing in respect of a claim for damages in negligence, which is set down to commence on 4 November 2020.

2. The plaintiff suffered injuries to her vulvo-vaginal area as a result of a sexual assault. She was referred by her medical practitioner to the defendant, who at that time was a gynaecologist and pelvic reconstructive surgeon. The defendant performed surgery on the plaintiff in September 2010. The plaintiff was subjected to a further sexual assault, and underwent further surgery by the defendant in July 2011. After the second surgery, the plaintiff had more consultations and treatment with the defendant. The plaintiff alleges that the defendant breached his duty of care owed in managing her urogynaecological condition, as a result of which she suffered ongoing physical and psychological injuries.

3. The plaintiff commenced her claim for damages by a statement of claim filed in the District Court of New South Wales on 6 September 2013. On 16 June 2016, the proceedings were transferred to this Court. On 16 February 2018, the Court fixed a hearing date of 29 October 2018, allocating 15 days. The Court ordered a conferring of experts to occur on or before 31 July 2018, and that the ensuing reports setting out the areas of agreement, disagreement and reasons be provided by 21 August 2018. On 29 August 2018, the Court ordered a “Liability Conclave” to occur by 19 October 2018 and a report from the liability conclave to be issued by 23 October 2018.

4. Two expert conclaves took place before the scheduled hearing. The hearing was subsequently vacated by the trial judge, and a timetable was set for the plaintiff to serve further liability evidence by 20 March 2019, with the defendant to serve further expert evidence by 15 May 2019. On 20 August 2019, the Court granted leave to the plaintiff to serve a further amended statement of claim. On 4 September 2019, the Court ordered a timetable for the parties to serve any further expert evidence in relation to economic loss. In its defence to the further amended statement of claim, filed on 18 September 2019, the defendant admitted certain alleged breaches of his duty of care to the plaintiff, although causation and damages remained in dispute. The current hearing date of 4 November 2020 was set down on 25 September 2019, with a reduced allocation, in view of the defendant’s admissions, of seven days.

5. The first order sought by the defendant, pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), is that the plaintiff attend examinations by the following:

(a)   Dr Angelo Virgona (psychiatrist) on 9 June 2020;

(b)   Dr Seamus Dalton (rehabilitation physician) on 2 June 2020; and

(c)   Ms Kathryn Caukill (occupational therapist) on 24 June 2020.

6. The second order sought is that the defendant’s time to serve any expert evidence from Kathryn Caukill be extended to 31 July 2020, and the third order is that the defendant’s time to serve any “refresher evidence” from Dr Virgona and Dr Dalton be extended to 30 June 2020. An order for costs is also sought.

7. The defendant has advanced three reasons for the application. The first is that in March 2020, the defendant instructed new solicitors who have reviewed the defendant’s case with “fresh eyes”. The second is the age of some of the expert reports, given the lengthy period of time that has elapsed since the proceedings were initiated. The third is a fundamental change in the nature of the contested issues, following the filing by the plaintiff of the further amended statement of claim. The defendant submits that the focus of the hearing in November will now clearly be on damages. The defendant further submits that the orders sought would not occasion any prejudice to the plaintiff, as the hearing is still five months hence.

8. The application is opposed. As to the first reason advanced by the defendant, counsel for the plaintiff submits that a fresh assessment of the defendant’s case by newly-instructed solicitors is not a proper basis for the application. The plaintiff submits that:

“… the plaintiff’s forensic case has been, and has been for a long time, that her condition hasn’t much changed, and therefore, unlike other circumstances where the plaintiff constantly and routinely updates the plaintiff’s medical evidence, because of the static nature of the plaintiff's condition that hasn't been required.”

9. Therefore, the plaintiff submits, the orders sought by the defendant evidence an attempt by the new solicitors “to change the forensic course” of his case at this late stage, and the defendant has not pointed to any errors or omissions by the defendant’s prior solicitors in the preparation of his case that would justify this.

10. As to the second reason, counsel submits that the appropriate time to seek leave to file fresh or refresher expert evidence was before the matter was set down for hearing, since the defendant was aware at that time of the date of the most recent reports by Dr Virgona and Dr Dalton.

11. The plaintiff submits that if the orders sought are made, the defendant ought not be permitted to reintroduce the issue of causation through the content of the reports. Further, the plaintiff does not accept that, if orders are made pursuant to the proposed timeframe, the plaintiff would have adequate time to prepare its reply evidence, if any.

Consideration

12. The defendant has not suggested that the forensic decisions made by his previous solicitors to not seek the evidence now sought, at the appropriate time or at all, were negligent, or that his case is so prejudiced by its absence that it would be fundamentally affected.

13. I accept the plaintiff’s submission that the first reason advanced by the defendant for seeking the orders for examination of the plaintiff at such a late stage of these proceedings, that is, that “fresh eyes” have prompted a view that aspects of the evidence need to be updated and complemented by an occupational therapist’s report, is not persuasive. However, I also accept that, on the question of damages, there is relevance in having available to the Court recent medical and therapeutic evidence.

14. In relation to the first order sought, the plaintiff has been assessed by Dr Virgona previously, but not since 2014. The plaintiff was assessed by her own psychiatrist, Dr Samson Roberts, as arranged by her solicitors, most recently in 2015. Pursuant to the court order of 16 February 2018, the two psychiatrists conducted a conclave, which occurred by phone at 5:30pm on 19 July 2018. In their ensuing report, dated 2 August 2018, they said:

“… Dr Roberts and Dr Virgona have no significant areas of disagreement. Both experts are of the opinion that there was a pre-existing psychotic condition, either a Delusional Disorder or a Schizophreniform Disorder. Both experts are of the opinion that [the plaintiff] suffered a depressive condition consequent upon the events that form the basis of this matter with Dr Virgona diagnosing an Adjustment Disorder with Depressed Mood and Dr Roberts diagnosing a Major Depressive Disorder. Any difference may reasonably be accounted for by the passage of time between the two assessments.”

15. The two psychiatrists answered specific questions. Question 2 concerned the likely future course of any recognised psychiatric condition that the plaintiff may have. They responded that they could not comment on the plaintiff’s current state or the condition’s likely course, since Dr Virgona and Dr Roberts had not assessed her since 14 October 2014 and 9 October 2015 respectively. Question 5 sought their opinion concerning the plaintiff’s “situation and prognosis” as to employment, treatment and the need for any care and assistance. They said:

“… In the absence of a recent psychiatric assessment it is not possible to comment on her current capacity to participate in employment, her current and future needs for treatment or the current or future needs for care and assistance.”

16. In view of those responses and the relevance of the evidence to the issues in dispute between the parties, I am of the opinion that the request to have the plaintiff again examined by Dr Virgona is reasonable. I accept that the plaintiff may wish to be examined again by Dr Roberts, depending on the opinion of Dr Virgona. If that does occur, a sensible course would be for there to be a further conclave and joint report. I do not consider that those occurrences would jeopardise the hearing date or the estimate of its length, because there is no reason as to why any further conclave could not also be conducted by telephone and outside consulting hours. Any further report would not involve a reconsideration of the issues already addressed in the report of 2 August 2018. The issues still to be addressed by Questions 2 and 5 are necessary for a final resolution of the issues between the parties.

17. In respect of the examinations sought to be carried out by Dr Dalton and Ms Caukill, the relevant background is that the defendant had received the report of the plaintiff’s occupational therapist, Ms Curtain, in early 2016, and therefore had three years to consider whether he wished to also obtain an opinion of an occupational therapist. The plaintiff’s counsel submitted that Dr Dalton’s previous report, which followed his examination of the plaintiff in early 2016, was directed towards responding to Ms Curtain’s opinion and the plaintiff had not served any further report by its occupational therapist since then. The plaintiff expressed concern that if a “refresher” report by Dr Dalton was provided that ventured into the area of occupational therapy, and the order sought for a report from Ms Caukill was also made, the defendant would then have two expert reports on the same topic without sufficient reason at this late stage of proceedings.

18. Although neither party has tendered the reports of Dr Dalton or Dr Curtain, it was accepted in oral submissions by the parties that Dr Dalton’s report deals with similar issues, which is unsurprising, given his field of expertise. In the absence of any suggestion of negligent or incompetent oversight in the preparation of the defendant’s case by his previous solicitors, it would be unreasonable for the defendant, at this late stage of trial preparation proceedings, to be able to rely upon the expert evidence of an occupational therapist in addition to an updated report by Dr Dalton, since the reasonable need for the plaintiff to obtain further opinions from their experts may jeopardise the hearing of the matter being able to proceeding on the allocated date.

Conclusion

19. Accordingly, I am of the view that an appropriate order that balances the desirability for evidence of that nature to be refreshed, without imperilling the hearing preparation timetable, is for the defendant to be permitted to obtain a refresher report from Dr Virgona and Dr Dalton, and for that reason, that the plaintiff be required to attend upon examinations by them. The plaintiff should not be required to attend an examination by Ms Caukill, since there is a patent unfairness in the defendant being able to introduce an additional expert at this late stage in an area of expertise so closely related to that of its present expert, Dr Dalton.

20. In relation to costs, I note that the plaintiff does not oppose the defendant’s submission that costs should be in the cause.

Orders

21. I make the following orders:

(1)   The plaintiff is to attend the following examinations:

(a)   Dr Angelo Virgona on 9 June 2020; and

(b)   Dr Seamus Dalton on 2 June 2020.

(2)   The defendant is to serve any refresher evidence, in the form of further reports from Dr Virgona and Dr Dalton, by 30 June 2020.

(3)   The report by Dr Virgona is to be confined to his opinions concerning the issues raised in Questions 2(b) and (c) and Question 5 of the conclave report of Dr Virgona and Dr Roberts, dated 2 August 2018.

(4)   Costs of the notice of motion are costs in the cause.

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Decision last updated: 01 June 2020