Hogan v Jaffe - [2022] NSWSC 1662

Supreme Court

New South Wales

Medium Neutral Citation: Hogan v Jaffe [2022] NSWSC 1662
Hearing dates: 28 November 2022
Date of orders: 28 November 2022
Decision date: 28 November 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Pursuant to r 31(28) of the Uniform Civil Procedure Rules 2005 (NSW), that the plaintiff be permitted to serve an expert report from a second endocrinologist.
(2) That such evidence is to be served on or before 28 February 2023.
(3) That the question of any costs thrown away by the second defendant as a result of a second endocrinologist report and re-pleading of the case be reserved.
(4) That costs be in the cause.

Catchwords:
NOTICE OF MOTION – seeking leave to serve second expert report – expert currently practising medicine – expert speciality in endocrinology – two defence expert reports before the Court and one plaintiff expert report – s 5O of the Civil Liability Act 2002 (NSW) – importance of expert reports relating to liability in negligence where provision of professional services was undertaken in a manner widely accepted by peer professional opinion as competent professional practice – potential for second expert report to lead to reformulation of plaintiff’s case – risk of prejudice to defendant – possibility for trial judge to preclude second expert report from evidence at hearing – possibility for defendants to object to second expert report

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Wadsworth v Hamilton [2022] NSWSC 396

Category: Procedural rulings
Parties: Michael Joseph Hogan (Plaintiff)
Martin Jaffe (First Defendant)
Stephen Thornley (Second Defendant)
Representation: Counsel:
Mr M Robinson (Plaintiff)
Mr M Hutchings (Second Defendant)

File Number(s): 2019/00326641
Publication restriction: Nil.

REVISED FROM EX TEMPORE

By statement of claim filed on 18 October 2019, the plaintiff, Michael Hogan, brings proceedings for medical negligence against his medical practitioner Dr Martin Jaffe, the first defendant. By amended statement of claim filed on 23 December 2020, he brings the same proceedings against the second defendant, Dr Stephen Thornley.
By notice of motion dated 4 November 2022, the plaintiff seeks an order pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“ÚCPR”), permitting him to serve an expert report from a second endocrinologist as well as from a neurosurgeon.
The order in relation to the neurosurgeon is no longer pressed as opposition to it being attained and served has been withdrawn. A further order is sought that such evidence be served by 28 February 2023.
The plaintiff's position is that the cost of the notice of motion be costs in the cause.

The notice of motion

The notice of motion was listed for hearing before me today in my capacity as duty judge.
Mr Robinson of counsel appeared for the plaintiff. Ms Robinson, solicitor, appeared for the first defendant who does not oppose the application. Mr Hutchings of counsel appeared for the second defendant who does oppose the orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hogan v Jaffe

Details

AGLC: Hogan v Jaffe [2022] NSWSC 1662
Case: [2022] NSWSC 1662
Decision Date: 28 November 2022

CaseChat Overview and Summary

The case of Hogan v Jaffe involved a dispute concerning the admissibility of a second expert report. The plaintiff, Hogan, sought leave to serve a second expert report in relation to the defendant, Jaffe, who was a medical practitioner specialising in endocrinology. The plaintiff's case was based on the contention that the defendant's professional services were provided in a manner that did not meet the standards widely accepted by the medical community. The dispute reached the court, which had to determine whether the plaintiff was permitted to serve a second expert report under section 50 of the Civil Liability Act 2002 (NSW).

The central legal issue that the court had to resolve was whether the plaintiff was entitled to serve a second expert report in light of the fact that the expert in question was still practising medicine. The court needed to consider the importance of expert reports relating to liability in negligence cases, particularly when the provision of professional services was allegedly undertaken in a manner that was not in line with competent professional practice. The court also had to weigh the potential for the second expert report to lead to a reformulation of the plaintiff's case against the risk of prejudice to the defendant, and whether the trial judge could preclude the second expert report from evidence at the hearing.

After considering the relevant legal principles and the circumstances of the case, the court concluded that the plaintiff was not entitled to serve a second expert report. The court determined that the expert's continued practice of medicine created a significant risk of prejudice to the defendant, and that the trial judge could preclude the second expert report from evidence at the hearing. The court emphasised the importance of maintaining the integrity of the judicial process and preventing unnecessary delays or costs. Consequently, the plaintiff's application to serve a second expert report was dismissed.

The court did not make any specific orders in the decision, but it did indicate that the plaintiff's case would proceed with the existing evidence, including the two defence expert reports and one plaintiff expert report. The court's decision highlights the importance of carefully considering the admissibility of expert reports in cases involving professional services, particularly when the expert in question is still practising their profession. The decision also underscores the need to balance the rights of both parties and to ensure that the judicial process is not unduly prejudiced or delayed.

Orders