Guerin v Watts

[2002] NSWSC 692

CITATION:	Guerin v Watts [2002] NSWSC 692
FILE NUMBER(S):	SC 20240/00
HEARING DATE(S):	2 August 2002
JUDGMENT DATE:	2 August 2002
PARTIES :	Michelle Guerin - Plaintiff Dr Alan Watts - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	L Whalan - Plaintiff S Woods - Defendant
SOLICITORS:	Golsby Whiteley - Plaintiff Blake Dawson Waldron - Defendant
CATCHWORDS:	professional negligence - joint meeting of experts prior to hearing of claim for damages
DECISION:	The orders I make are: (i) that a joint meeting of experts take place pursuant to Pt 36 rule 13 CA; (ii) that the legal representatives of the parties prepare a document of the kind I have just mentioned; (iii) that the defendant's legal representatives prepare bundles of material, including draft sets of assumptions, experts' reports and questions for consideration of the medical practitioners; (iv) I note that the condition that the defendant meet the costs in first instance is not intended to be a condition that, in the event the plaintiff is unsuccessful, they would not be entitled to recover those costs. That would be a matter for separate consideration. The intention of that condition is simply to facilitate the conference taking place; (v) subject to anything counsel might say, I order the costs of this application be costs in the cause.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
professional negligence list

SIMPSON J

Friday 2 August 2002

20240/00 Michelle GUERIN v Alan WATTS

JUDGMENT

1 SIMPSON J: This is an application that a joint meeting of experts take place preliminary to the hearing of the plaintiff's claim for damages against the defendant in which she asserts that he, as a medical practitioner, was negligent in his treatment of her.

2 There are at least four experts qualified on behalf of the defendant and six on the part of the plaintiff and it is proposed, so far as possible, that all of these experts attend at a joint meeting in order to attempt some resolution of a number of issues that are outstanding. Some of those issues are factual, the most stark of these being an account of what the plaintiff claims to have said to the defendant during the course of consultations with him, and the defendant's contrary account of those meetings.

3 As I understand it, the experts who have provided reports have formed their opinions on the basis of assumptions provided to them by the solicitors acting for the parties they represent, but have not turned their minds to their opinions on the contrary assumptions.

4 It seems to me that this is a significant matter that should be remedied and one question is whether it should be remedied by each doctor being asked individually to express an opinion on those alternative assumptions, or all meeting together to do so. It is obvious that if all meet together, they may continue to take different views.

5 I am told there are also other issues concerning what a reasonable practitioner in the defendant's position would have done on the basis of what the defendant knew and was told.

6 The defendant's counsel has argued forcefully that the rules provide for such a meeting and that this is the sort of case in which, even if the proceedings are not resolved by such a meeting, there is a real chance either that the issues will be narrowed or that the evidentiary scope will be reduced.

7 Counsel for the plaintiff resisted the application partly on the basis of cost which, I am satisfied, would have been prohibitive for her and partly on the basis that she considers that the prospects of any real benefit being achieved from the meeting are so limited as to render its cost and inconvenience disproportionate.

8 I think this is one of those cases where a joint meeting of experts, preferably in the presence of the legal representatives of the parties and under their guidance, could achieve real benefits in relation to some issues and I did propose to make such an order. However, when I indicated that that was my view, the costs to the plaintiff and her impecunious financial position were drawn to my attention and it seemed to me that, although there was no direct evidence to this effect, to order that such a meeting take place may have precluded the plaintiff pursuing her claim. This would be quite an unfair and unjust outcome.

9 Accordingly I propose to make the order but, since it is the defendant's application, to make it conditional upon the defendant's agreement to pay the disbursements of the conference, such disbursements to include the fees of any medical practitioner who is retained by the plaintiff and who requires payment as a condition of his or her attendance, and also to meet the costs of the conference itself, although this may be done by the provision of the necessary facilities, including the preparation of material to be circulated to the medical practitioners. That in itself will be a considerable exercise and a not inexpensive one.

10 I also propose to direct the parties to prepare a set of assumptions which will have to include alternative assumptions for the consideration of the medical practitioners and a set of questions for their consideration. The defendant's counsel have volunteered to prepare the first draft of such a document and I so direct.

11 Accordingly the orders I make are:

(i) that a joint meeting of experts take place pursuant to Pt 36 rule 13 CA;

(ii) that the legal representatives of the parties prepare a document of the kind I have just mentioned;

(iii) that the defendant's legal representatives prepare bundles of material, including draft sets of assumptions, experts' reports and questions for consideration of the medical practitioners;

(iv) I note that the condition that the defendant meet the costs in first instance is not intended to be a condition that, in the event the plaintiff is unsuccessful, they would not be entitled to recover those costs. That would be a matter for separate consideration. The intention of that condition is simply to facilitate the conference taking place;

(v) subject to anything counsel might say, I order the costs of this application be costs in the cause.

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Last Modified: 08/09/2002