Hunter New England LHD v Munters Pty Limited

[2017] NSWSC 428

Supreme Court

New South Wales

Medium Neutral Citation:	Hunter New England LHD v Munters Pty Limited [2017] NSWSC 428
Hearing dates:	10 March 2017
Date of orders:	10 March 2017
Decision date:	10 March 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)   The plaintiff can serve a report from a medical mycologist; (2)   The defendant is to file and serve any affidavit in support of its notice of motion filed 9 March 2017 by 17 March 2017; (3)   The plaintiff is to file and serve any affidavit in reply on the motion by 6 April 2017; (4)   The motion and the proceedings are listed for further directions before the Registrar at 9 am on 27 April 2017.
Catchwords:	PROCEDURE – negligence – mycology – medical records affected by flooding and mould – alleged that remedial work carried out negligently – whether the plaintiff should be entitled to rely on the evidence of a third mycologist – the difference between mycology and medical mycology – consideration of the efficiency provisions of the Civil Procedure Act 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Hunter New England LHD – Plaintiff Munters Pty Limited – Defendant
Representation:	Counsel: A. Trevena (Plaintiff) S.B. Docker (Defendant)   Solicitors: Robertson Saxton Osborne (Plaintiff) Lander & Rogers (Defendant)
File Number(s):	2014/18337
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. This matter has been referred to me by the Registrar to rule on whether the plaintiff ought to be permitted, over the objection of the defendant, to qualify a further expert mycologist to give evidence in the case.

2. The case is a claim for damages totalling just short of $12million, with interest, relating to what is, in broad terms, characterised as the cost of remedial work in relation to a mould infestation affecting the plaintiff’s archive of medical records.

3. The short facts are that the place where the records were stored was flooded and it is alleged the defendant was brought in as an expert to rectify the damage to, and restore, the records to permit them to be preserved and used as necessary in relation to patient health.

4. The case, briefly, is that that work was done by the defendant negligently, that the records became affected by mould and that the mould spread throughout the plaintiff’s archives and adversely affected the health of its employees such that further remediation was required. The records had to be moved and many if not all of them had to be reduced to computerised form.

5. The issue between the parties relates to, as I have said, whether the plaintiff should be entitled to rely upon the evidence from a third proposed mycologist. The argument has been put very succinctly by the parties, with respect. At the moment the plaintiff has two reports: one is in affidavit form from a Dr Hieke Neumeister-Kemp, and the second from Dr Cameron Jones.

6. At first blush a question does arise about why three, when the two already engaged seem to be well-qualified and express relevant opinions in relation to the range of issues likely to require determination at the trial. The answer to that is put forward by the plaintiff, that Dr Neumeister-Kemp is analogous to the treating doctor in a personal injury case. She was the expert brought in to implement and oversee the subsequent remediation work. Although she does express opinions about relevant matters, in the circumstances she may not be viewed as an entirely independent expert. In saying so, I am not seeking in any way to denigrate her reputation or standing but she will be giving evidence about contentious facts as well as expressing opinions about matters in issue.

7. Doctor Jones is an entirely independent expert.

8. It is relevant to record that on 18 August 2016 the parties agreed that in addition to the mycologists that I have referred to, the plaintiff could obtain and serve the report of a medical expert. Part of the case on causation is that the mould spores adversely affected the health, as I have said, of the plaintiff’s employees and this was an important factor in the need to undertake the remediation work.

9. The apprehension is that although it may be said that the mycologists already retained may be qualified to speak about mycology in relation to the potential effect of mould spores on human health, it was perceived that to prove the facts on the balance of probabilities an expert with medical qualifications might be required.   

10. Further enquiries have led the plaintiff to the belief that a medical mycologist is the more appropriate category, or medical mycology is the more appropriate category of specialist knowledge with which to address that issue than mycology. Mr Trevena tells me, and I accept, that it is no longer proposed to qualify a medical practitioner per se to give evidence in the case.

11. Given the amount involved, the complexity of the issues and that the proposed expert, Dr Malcolm Richardson, is to be brought in as a medical mycologist in place of the medical practitioner the subject of the orders made in August 2016, I am of the view that the plaintiff should be permitted to qualify him if he is prepared to accept the retainer to give expert evidence in the case.

12. In coming to this conclusion, I am also influenced by the fact that Dr Kemp will not be giving evidence as an entirely independent expert because of her direct involvement in the remedial work. However, even in such a large case, there needs to be a limit to the number of experts involved, having regard to the efficiency provisions of the Civil Procedure Act 2005 (NSW) ss 56 to 60 and I think the appropriate order for me to make to resolve this dispute is to revoke order 3 of 18 August 2016.

13. I am going to make the following orders:

1. The plaintiff can serve a report from a medical mycologist;

2. The defendant is to file and serve any affidavit in support of its notice of motion filed 9 March 2017 by 17 March 2017.

3. The plaintiff is to file and serve any affidavit in reply on the motion by 6 April 2017.

4. The motion and the proceedings are listed for further directions before the Registrar at 9 am on 27 April 2017

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Decision last updated: 19 April 2017