Jackson v Thakkar

[2023] NSWSC 100

Supreme Court

New South Wales

Medium Neutral Citation:

Jackson v Thakkar [2023] NSWSC 100

Hearing dates:

14 February 2023

Date of orders:

14 February 2023

Decision date:

14 February 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The plaintiff is granted leave to rely on the reports of Associate Professor Mangioni and Dr Baker, being reports which have already been served.

(2) Subject to any exceptional circumstances arising, the plaintiff will not be permitted to rely on any further medical evidence.

(3) I grant leave to the plaintiff to serve an amended statement of claim by 5:00pm on 20 February 2023, subject to the defendant objecting to any part of that amended statement of claim.

(4) The defendant is to serve a defence to that amended statement of claim by 5:00pm on 23 February 2023.

(5) I grant leave to the defendant to approach the trial judge if he wishes to oppose the amended statement of claim.

(6) I confirm that no further amendments to the statement of claim will be permitted, subject to exceptional circumstances and subject to any contrary decision of the trial judge.

(7) The hearing will proceed on 27 February 2023 with only the factual evidence being given.

Catchwords:

CIVIL PROCEDURE — Case management – medical negligence – where plaintiff relies on additional expert reports – where new issues raised close to hearing – splitting of issues

Legislation Cited:

None

Cases Cited:

None

Texts Cited:

None

Category:

Procedural rulings

Parties:

Jake Glen Jackson (Plaintiff)
Vivek Thakkar (Defendant)

Representation:

Counsel:
D Campbell SC with M Algie (Plaintiff)
J Downing SC (Defendant)

Solicitors:
Greg Walsh & Co (Plaintiff)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2021/200410

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. This matter comes before me today by way of an application by the plaintiff to rely on two medical reports which have been served late and well out of time. Their service is also inconsistent with earlier consent orders which were made when this matter was listed for hearing, that is, on 18 October 2022.

2. The matter is listed for hearing for five days, commencing 27 February 2023. Mr Campbell of Senior Counsel appears with Mr Algie for the plaintiff and Mr Downing SC appears for the defendant.

3. The plaintiff relies on an affidavit of his solicitor, Gregory Walsh, dated 10 February 2023. The defendant relies on an affidavit of a solicitor employed by the solicitor for the defendant, Hanna Shiel, dated 8 February 2023.

4. The plaintiff pursues a claim in medical negligence against a treating rheumatologist.

5. The plaintiff says that he first sought advice and treatment from the defendant in approximately 2018, when he was suffering from various symptoms. The plaintiff says that his condition was misdiagnosed and that he was prescribed certain drugs, which he took. He was subsequently diagnosed with leukaemia. He suffered a stroke and is left with a significant disability, the extent of which I am uncertain.

6. The hearing of the matter was expedited in October 2022, when the solicitor for the defendant became aware that the defendant himself was suffering from stage 4 cancer.

7. Bearing in mind that there is a contest on the facts between the plaintiff and the defendant, it will be necessary for the defendant to give evidence in the proceedings.

8. As such, Davies J ordered expedition and orders were made by consent on 18 October 2022 ensuring that the proceedings would be ready to proceed on 27 February 2023.

9. Those orders required: (1) that the plaintiff serve any further witness statements and any evidence in reply to the defendant's quantum evidence by 3 December 2022; (2) that the defendant serve further witness statements by 21 December 2022; and (3) that the parties agree on questions for conclaves by 10 February 2023.

10. In my view, the orders did not contemplate the plaintiff serving new medical reports from additional experts of different disciplines.

11. The plaintiff now seeks to rely on two additional medical reports being from Associate Professor Mangioni, who is a consultant pharmacologist, and Professor Baker, who is a haematologist. Previously, the plaintiff relied essentially on Professor Fox, who is an oncologist, having served two reports in 2021 and 2022. The defendant has obtained evidence in response.

12. As identified in the affidavit of Mr Walsh and as explained by Mr Campbell, after Mr Campbell had given appropriate consideration to the matter, it was decided that the plaintiff needed to obtain this additional expert medical evidence. It is not clear to me why consideration had not been given as to the adequacy of the plaintiff's medical evidence well before late 2022 but I accept that in some cases – particularly in cases of significant complexity – minds may differ as to the type of evidence required, and in this case, those representing the plaintiff determined that they were not satisfied with the adequacy of their expert medical evidence until late 2022, such that they obtained additional reports.

13. The service of these additional reports caused the preparation of the matter for hearing to come to a halt. At least some of the conclaves that were proposed have not taken place; for example, the conclave on causation has not yet taken place.

14. The plaintiff says that the additional expert reports are necessary for the proper presentation of the plaintiff's case. The defendant says that these reports are all too late; the matter was expedited on the strength of the evidence as it was in October 2022, there has not been any prior indication that the plaintiff would be seeking to rely on such medical reports and the content of (at least) the report of Associate Professor Mangioni is such that the defendant will be objecting to parts of it as going beyond the pleadings.

15. Normally, it would be too late for the plaintiff to be seeking to rely on such reports, particularly when the reports raise new issues so close to the hearing. However, in this case, the hearing has been expedited, essentially because it is necessary to hear the defendant's evidence.

16. Mr Campbell proposes that the evidence of fact be taken and that the hearing be adjourned to allow the defendant to respond to this new medical evidence. Again, normally the Court would reject any application to split a hearing in this way. However, whilst the principles of case management are important and whilst it is important to recognise that both parties have the right to a hearing as soon as possible, case management should not take precedence over the need to ensure a fair hearing between the parties and ensuring that justice is done between the parties.

17. It is regrettable that this is another medical negligence matter where the parties are coming before the Court within a month of the hearing explaining that everything has changed and that they need more time as one of the parties is seeking to serve additional reports but I must deal with each case on the merits of the particular case.

18. In my view, subject to the plaintiff being precluded from serving any further evidence (other than those recent reports) and subject to the plaintiff being precluded from amending the statement of claim after hearing the evidence of fact, there is no prejudice to the defendant by the proposed course except as to costs.

19. The matter has been listed for hearing for five days. As Mr Downing points out, with the new evidence it could not possibly be completed within that time. The evidence of fact may take three days.

20. In those circumstances, I make the following orders:

1. The plaintiff is granted leave to rely on the reports of Associate Professor Mangioni and Dr Baker, being reports which have already been served.

2. Subject to any exceptional circumstances arising, the plaintiff will not be permitted to rely on any further medical evidence.

3. I grant leave to the plaintiff to serve an amended statement of claim by 5:00pm on 20 February 2023, subject to the defendant objecting to any part of that amended statement of claim.

4. The defendant is to serve a defence to that amended statement of claim by 5:00pm on 23 February 2023.

5. I grant leave to the defendant to approach the trial judge if he wishes to oppose the amended statement of claim.

6. I confirm that no further amendments to the statement of claim will be permitted, subject to exceptional circumstances and subject to any contrary decision of the trial judge.

7. The hearing will proceed on 27 February 2023 with only the factual evidence being given.

21. It will be a matter for the trial judge to make further orders as to the future conduct of the matter, noting that the expert evidence will not be heard during the first stage of the hearing. I will leave it to the trial judge to make orders for the service of any further evidence upon which the defendant wishes to rely in response to the plaintiff's most recent medical reports.

22. I will leave it to the trial judge to make orders for costs thrown away, noting Mr Downing's submission that there will be costs thrown away by reason of undetermined issues, the shortened hearing and the fact that the defendant has prepared the matter for full hearing at this time, including arranging for its expert to give evidence.

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Decision last updated: 20 February 2023