Kenneally v Pouras & Ors No. Scciv-02-564

[2003] SASC 394

KENNEALLY v POURAS & ORS

[2003] SASC 394

Civil

1. GRAY J                 This is an ex parte application pursuant to Rule 38.01(4) of the Supreme Court Rules 1987 for an order that the defendant Terrence Sotirios Pouras not be required to deliver a medical report to other parties.

   The Facts

2. The substantive proceedings involve a claim bought by an infant plaintiff Michaela Claire Kenneally against Dr Pouras and the Western Community Hospital Inc for damages for breaches of duty.  It is alleged that Ms Kenneally suffered brain damage, as a result of negligent treatment soon after birth.  The statement of claim includes the following allegation:

   -It is alleged that [Dr Pouras] was guilty of negligence and/or breach of contract in that he:

   -      Failed to afford the plaintiff proper medical, specialist and other treatment in respect of her said infection and low blood sugar level to and at the time of and subsequent to treatment being carried out thereto;

   -      Failed to examine the plaintiff during the critical period following her birth for the purpose of ascertaining the nature of her condition;

   -      Failed to diagnose the plaintiff’s said condition;

   -      Misdiagnosed the plaintiff’s said condition;

   -      Ordered that the plaintiff’s blood sugar level be measured only if clinically indicated;

   -      Failed to order that the following tests be undertaken in relation to the plaintiff for the purpose of accurate diagnosis of her said condition:

   (i)A chest x-ray;

   (ii)A complete blood examination;

   (iii)Blood cultures;

   (iv)Urine latex test for group B Streptococcal infection.

   -      Failed to organise the transfer of the plaintiff to the Queen Victoria Hospital, or other hospital with a high-dependency paediatric facility, prior to 8.30am on 22^nd April 1994;

   -It is alleged that [Western Community Hospital] was guilty of negligence and/or breach of contract in that it by its servants or agents:

   -     The plaintiff repeats [the allegations against Dr Pouras];

   -    Allowed the plaintiff to remain in the care of the said hospital when she required a transfer to the Queen Victoria Hospital or another hospital with a high-dependency care paediatric facility;

   -    Failed to ensure that [Dr Pouras] examined the plaintiff during the critical period following her birth.

3. The solicitors for Miss Kenneally disclosed a report of a medical expert Christopher Pearson of 28 February 2001 to Dr Pouras’ solicitors before proceedings were commenced.  In that report Dr Pearson concluded:

   It is most reasonable to postulate that if this child was retrieved at a much earlier stage in the illness, such as at or around the time that Dr Pouras first examined the baby at 8.00pm on the previous evening, that she would have tolerated the transfer and been investigated and started on treatment at the WCH prior to the peak of the illness. This in turn should have prevented any significant sequelae. It is thus important to recognise that Dr Pouras’ decision to neither investigate nor to transfer this baby at any early stage of the illness to an appropriate centre to manage her illness is the major factor leading to her adverse outcome.

4. Following receipt of Dr Pearson’s report Dr Pouras’ solicitors sought expert medical advice from a specialist medical practitioner Mark Hoby. The letter of instruction enclosed a copy of limited hospital records for his consideration.  The letter advised that:

   ..in the first instance I do not require a written report but would welcome the opportunity of speaking with you by telephone or in conference. 

   Dr Hoby spoke with Dr Pouras’ solicitor by telephone.  The solicitor noted that Dr Hoby’s views were generally unfavourable to Dr Pouras’ case.

5. Dr Hoby was then sent the entire notes of the Queen Victoria Hospital relating to Miss Kenneally as well as Dr Pearson’s report of 28 February 2001. Dr Hoby was spoken to again by telephone.  Dr Hoby informed the solicitor that he was generally in agreement with the report of Dr Pearson. Dr Hoby was told that a written report was not required.  He was asked to send his account for considering the matter for payment.

6. Following the telephone conversations, Dr Pouras’ solicitors received a letter from Dr Hoby, enclosing his account for services. The letter included the following:

   Thank you for the opportunity to consider the management of this little girl immediately following her birth. As I noted in our telephone conversations, in essence, I agree with the comments of Dr Chris Pearson.

   The minor additional points, related to possible delays in the administration of antibiotics and of the recognition and treatment of her jaundice I think are probably of no consequence.

   The Ex Parte Application

7. Dr Pouras applied to this Court for an ex parte order pursuant to Rule 38.01 that he not be required to deliver Dr Hoby’s letter to the other parties.  Rule 38.01 relevantly provides:

   (1)     Within twenty-eight days after the time limited by the Rules for making discovery in the action each party in an action shall deliver to all other parties a full copy of every expert report in the party’s possession or power relating to any matter in issue in the action.

   …

   (4)     Where a party contends that the party’s case would be unfairly prejudiced by the disclosure of a particular expert report, the party may, before or within 7 days after the party is required to deliver that report, file a copy of that report in a sealed envelope which is not to be opened except by the authority of the Court and apply ex parte to the Court for an order that the party be not required to deliver that report pursuant to Rule 38.01.

   …

   (6)     For the purposes of Rule 38.01 “expert report”:

   (a)means a written report which contains or includes the opinion of any expert (which expression includes any of the persons described in subrule (6)(b) hereof) on any matter in issue in the action, and includes a report in which the expert comments upon the report or reports of any other expert; and

   (b)includes a report from any medical practitioner, dentist, psychologist, physiotherapist, chiropodist, chiropractor or any other person who has examined, treated or tested any party to the action or otherwise offered any professional opinion in connection with any injury or illness in issue in the action.

   (7)     Other than with the leave of the Court, no party is to adduce expert evidence at a trial unless:

   (i)prior to preparing the expert report the expert has been provided with a copy of the current practice direction issued by the Registrar entitled “Guidelines for Expert Witnesses in Proceedings in the Supreme Court of South Australia”;

   (ii)the expert includes an acknowledgement at the commencement of the expert report that he or she has been provided with and has read the copy practice direction referred to in (i) prior to preparing the expert report; and

   (iii)the following matters are set out in the report or reports delivered or disclosed in accordance with this Rule, or in particulars delivered in accordance with subrule (8):

   (a)     the substance of that expert’s evidence;

   (b)     the qualifications of the expert; and

   (c)particulars identifying the material upon which the expert bases his or her expert opinion.

   (8)     When the substance of the expert’s evidence or any of the other matters referred to in subrule (7) is or are not fully set out in the report or reports delivered or disclosed under this Rule, particulars in writing (which may be furnished by letter from a party or the solicitor for that party) setting out those matters, or which when read together with any report or reports which have previously been disclosed, adequately canvass those matters, shall be delivered to all parties no later than the date upon which the report, or if more than one report, the last report, must be delivered pursuant to this Rule:

8. It is to be observed that Rule 38.01 provides for the compulsory exchange of experts reports.  However discretion is given to the court to direct that a party not be required to disclose or deliver an expert report when it would be unfairly prejudicial to that party’s case.

9. Counsel submitted that if the Court considered that the letter constituted a report for the purposes of Rule 38.01, it would be unfairly prejudicial to oblige Dr Pouras to disclose the letter.

10. Counsel contended that Rule 38.01 eroded an area of legal professional privilege.  As a result the rule should be strictly construed. It was said that Rule 38.01 contemplated circumstances where relevant evidence could be kept from a party who would be advantaged by it. Oral discussion may not need to be disclosed.  Counsel submitted that Dr Pouras’ solicitors had done everything they could to comply with the rule and avoid disclosure of Dr Hoby’s views.  They had not sought a report in writing, but only an oral opinion. The oral opinion would in the ordinary case be the subject of privilege.  It was contended that if the exception to the rule was not available in the present case it would be difficult to contemplate a case where it may be available.  Counsel contended that unfairness arose in the present case. The applicant sought to act within the rules but that intention was frustrated by the arrival of an unsolicited report.

    The History of the Rule

11. Rule 38 came into operation on 1 January 1987. Prior to 1987 experts’ reports did not have to be disclosed if there was no intention to tender them. Rule 38 was amended in 1990 and a definition of “report” provided that included notes made by another person of an expert’s opinion. That definition was further amended in 1994 and the reference to a note of an opinion removed.

12. The policy and intent of Rule 38.01 was to advance and promote the orderly and efficient conduct of litigation.  In Apruzzese v Brooklyn Carpentry and Joinery Pty Ltd[1] King CJ considered the rule in its original form.  He observed:

    The intention of the Rules of Court and the practice directions which are made by the Court is to ensure that parties make full disclosure of such matters in good time before trial so that a trial can proceed upon the fixed date without interruption. To that end it is provided that the expert report shall be obtained and supplied before the pre-trial conference and inferentially that no order to proceed to trial shall be made until all expert reports have been obtained and supplied.

    These remarks record the general policy behind the rule.  They remain valid when considering the rule in its present form.

    [1]  Unreported judgment No 2579, 12 November 1990 at 3

13. In Piber Pty Ltd v AW Baulderstone Pty Ltd[2] Mullighan J also addressed this issue when considering Rule 38 in its earlier form:

    ..The obligation to disclose, and supply copies of, expert reports before the pre-trial stage of the proceedings is designed to ensure that the issues which arise in respect of expert evidence are clarified, and often narrowed, at an early stage so that parties and their experts may adequately prepare for trial and at the trial the focus will be upon only those matters which are in issue. Furthermore the pre-trial conference procedure is also designed to promote settlements not only of actions but of issues.

    The new rule provides for a significant change in policy. No longer may a party withhold from the other party or parties a report of an expert even though he does not intend to call that expert or to rely on the report in some other way. The policy of the rule is for full disclosure so that all matters relating to expert evidence are known to all parties and their experts well before the trial so as to permit the narrowing of the issues and the acceptance by the parties of expert evidence which is not in dispute. A consequence of the present procedure is that disclosure of an expert’s report which in some respect is unfavourable to a party, may advance the case of the other party. Tactical withholding of reports is no longer permissible. Such a policy may be clearly discerned from the rule and is consistent with the purpose of expert evidence, namely to assist the court with respect to matters which are not within the knowledge or experience of ordinary people.

    Nevertheless the rule does acknowledge that there may be circumstances where the disclosure of a report of an expert may unfairly prejudice the case of the party obliged to make the disclosure.

    It is not easy to imagine a situation where the disclosure of a report of an expert which is relevant to a matter in issue in an action would unfairly prejudice the case of the party who had obtained the report. It is not difficult to see how such a report might prejudice the case of such a party by providing some evidence of observations or opinion which is contrary to the case of that party and which has the potential to advance the case of an opposing party, but such prejudice could not be said to be unfair in view of the purpose of Rule 38 and its underlying policy.

    [2] (1992) 163 LSJS 380 at 382

14. A material difference between the present rule and its predecessor is that as earlier observed, in its present form the rule does not require the disclosure of the substance of oral discussions between the expert and the solicitor.  However, the amendments to the rule do not reflect any change in general policy.

15. The operation of the present rule was considered in Turner v Eastern Sydney Area Health Service & Ors[3] where Wicks J observed:

    An expert’s report becomes liable to be disclosed to the other parties in the action once it comes into the possession or power of the party ordering the report or the possession or power of his or her solicitor. Under the present SCR38 it is possible, without contravention of the rule, to arrange for an expert to consider the facts upon which an expert’s report is sought with a view to discussing the matter informally with the solicitors for the party ordering the report. A decision can be made at that time either to proceed with the preparation of the report or to terminate the instructions to the expert so that no report of that expert is brought into existence.

    …

    In my opinion, even though the report was unwanted, it falls within the language of SCR38.01(1) and SCR38.01(2) and must be disclosed to the other parties in this action. Relief from that obligation can only be obtained under SCR38.01(4) where the disclosure of the report would unfairly prejudice the appellant in the circumstances. The disclosure of Dr Lloyd’s report to the other parties in this action may well be prejudicial to the case of the appellant but I do not think that it is unfairly prejudicial. On the one hand the appellant is being required to make available to the other parties in the action a report which it did not order and does not want. On the other hand, as the learned Master rightly pointed out, the Court is being asked to use its processes to facilitate the withholding of a relevant expert’s report. It is being asked to exclude from discovery evidence that is material to one of the issues in question in the action. In my view, the latter consideration is paramount. This is not an appropriate case for the grant of relief under SCR38.01(4).

    The correctness of these observations were challenged on this application.  It was contended that they involved a misunderstanding of the phrase “unfairly prejudicial”.

    [3] [1999] SASC 1 at [23] and [25]

    Consideration of the Issue

16. The present case raises a similar issue to that considered in Turner.  Should there be disclosure of an unsolicited expert report.

17. As a result of Dr Hoby’s actions Dr Pouras is in possession of a written report which contains the opinion of Dr Hoby on a matter in issue in the action.  Dr Hoby’s letter is a report in which an expert comments upon the report of another expert.  Dr Hoby commented on the report of Dr Pearson when Dr Hoby indicated his agreement with Dr Pearson’s view.  Rule 38.01(6)(a) has application.

18. Dr Hoby was informed that a report was not required.  He was not instructed not to send a report.  No evidence has been placed before this court as to why Dr Hoby considered it necessary or appropriate to send a report in the terms he did.  An independent expert may not be prepared to express an opinion without being entitled to express those views in writing.

19. The following matters are relevant to the exercise of the discretion created by Rule 38.01(4).

    -the obligation of disclosure is designed to clarify issues that arise in respect of expert evidence.  The disclosure of Dr Hoby’s report will give effect to this object.

    -the obligation of disclosure is designed to narrow the issues in dispute.  The disclosure of Dr Hoby’s report is likely to have this consequence.  The fact that two relevant experts agree suggests that Dr Pearson’s views may represent the views of specialists in this particular area.  Once it is known that two relevant experts hold the same view to the prospect of the issues being narrowed is likely to be enhanced.

    -an object of disclosure is to allow parties to prepare adequately for trial and at the trial focus upon those matters which are in issue.  The disclosure of Dr Hoby’s report will enhance this object.

    -the exercise of discretion must be considered having regard to the overriding purpose of expert evidence.  The object of expert evidence is to assist the court to arrive at a just and fair conclusion to a dispute.  The disclosure of Dr Hoby’s report is likely to assist the court in this process.

    -the practice of this court is to have the parties and their advisers attend a pre‑trial conference.  This procedure is designed to promote settlements, not only of actions but of issues.  The disclosure of Dr Hoby’s report will assist this process.

20. It is necessary to consider the meaning of “unfairly prejudiced”. It is clear that the disclosure of an opinion by an expert, adverse to the position of the party who sought it will necessarily prejudice the position of the party. The question to be determined is whether to require the party to disclose a report in unfairly prejudicial circumstances in the case.

21. The words “unfairly prejudiced” invoke a consideration of what is just and fair in all the circumstances having regard to the primary obligation of disclosure.  Prejudice is a reference to a disadvantage.  The reference to “unfairly” conveys that there must be disclosure and delivery of a report unless the justice of the case requires relief from these obligations.

22. A party may be unfairly prejudiced if a report were to contain a perverse observation or if a report proceeded on a misapprehension of fact.  The release of a report in those circumstances may frustrate the policy lying behind Rule 38.01. The issues may be inappropriately broadened with a consequent delay and expense.  In the present case considerations of this nature do not arise.

23. The disclosure of Dr Hoby’s report should facilitate the efficient disposal of the action.  Its disclosure should encourage the narrowing of issues at trial so that the real issues are litigated.  Tactical considerations have no relevance.  A circumstance might arise where a party would search for a favourable opinion ignoring unfavourable opinions that are not committed to writing.  Such a process does not assist a court confronting the real or substantive issues in a case.  The interest of justice did not support the continued suppression of the report. Unfair prejudice to Dr Pouras does not arise.

24. The withholding of the report of Dr Hoby is difficult to view as being other than tactical.  The written report may have been unwanted but is now in the possession of Dr Pouras’ advisers.  Disclosure may be prejudicial but not unfairly prejudicial.  Miss Kenneally may be in a better position to advance her claim.

25. For these reasons the application is dismissed.

    JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

    1      Unreported judgment No 2579  12 November 1990

    2 (1992) 163 LSJS 380

    3      Unreported, 13 January 1999.  BC 900248