Lucas v Hillier & Carney No. Scgrg-94-694 Judgment No. S6707

[1998] SASC 6707

REASONS for DECISION

IN THE MATTER OF LUCAS v HILLIER & CARNEY

Millhouse J

The cause of action arose in May 1991.

Proceedings were taken on 5 May 1994.

I entered the action for trial on 23 December 1997 on the assurance that everything was ready to go.  The estimated time for hearing was six weeks.

In the action the plaintiff claims damages against the two defendants, one a neuro surgeon, the other an orthopaedic surgeon, for what he, the plaintiff, claims was a failed, because negligently performed, operation on his back.

The plaintiff is represented by three counsel, by Mr Robert Cameron with Mr Peter Allen instructed by Comcare and by Mr Martin Frayne to represent his personal interests.  The defendants are both represented by Mr Richard Halliday with Mr Geoffrey Black.

I began the hearing on 9 February.  It has gone for three months - February, March, May and now into June.  [I could not sit in April as I was in the Full Court].

The plaintiff closed his case on 26 March.

Mr Halliday opened for the defendants on 27 March.  Amongst other witnesses Mr Halliday said that he would be calling Dr Lance Perrett, the radiologist, who would rebut the views expressed in evidence by Mr Timothy Rowland Morley MA, MB, Bch, FRCS, an expert called by the plaintiff.   Mr Halliday went into some detail as to what Dr Perrett would say.

On 25 May Mr Halliday said that he proposed to called Dr Perrett the following day.  Mr Cameron objected to Dr Perrett being called.  The plaintiff had never had a report from Dr Perrett but had been provided only with two sets of briefing notes, unsigned and contradictory.  The plaintiff had no idea what Dr Perrett would say and would be prejudiced if he were to give evidence.

I was referred to the relevant parts of Rule 38.01:-

1. Within 21 days after the close of pleadings or affidavits 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.

   ...

   (3)    A party shall obtain all expert reports which the party wishes to obtain for the purposes of the action and comply with Sub-Rules (1) and (2) above in respect of all such reports no later than the date fixed by the Court or by the Rules for the case evaluation Conference, provided that the party may obtain supplementary reports from experts from whom previous reports have been obtained which are confined to matters upon which a report could not reasonably have been obtained within that time.
   ...

   (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 Sub-Rule (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 the following matters are set out in a report or reports delivered or disclosed in accordance with this Rule, or in particulars delivered in accordance with Sub-Rule (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."

The Rule is obviously aimed at avoiding "trial by ambush." The defendants, in relation to proposed evidence by Dr Perrett, have not complied with it.

I heard argument from counsel on four occasions on four days, Monday 25 May, Tuesday 26 May, Thursday 28 May and Friday 29 May.

The gist of Mr Cameron's (and Mr Frayne's) complaint was that the plaintiff had been prejudiced by not having, as he should have had, a report from Dr Perrett.  Had the plaintiff had a report, his case could have been presented differently and cross-examination of the defendants' witnesses have taken a different course.  Now, in the closing stages of the defendants' case it was proposed to call Dr Perrett, without any report from him and therefore the nature of whose evidence was only generally known.  It was just too late to cure the prejudice.  It would be quite unfair to the plaintiff for Dr Perrett to give evidence.

Mr Halliday answered by saying that from his cross-examination of the plaintiff's witnesses, and notably of Mr Morley, the evidence which Dr Perrett would give was clear.  He had opened on Dr Perrett's evidence and the defendants and their experts had made it quite clear what Dr Perrett would say.  The plaintiff could not have been taken by surprise and had not been prejudiced.  Even if he were, R38.02 gave remedies.  The defendants contended that when Mr Morley gave evidence they were taken by surprise by his views.  Mr Morley's view of anatomy, Mr Halliday said, was imperfect and had gone in oral evidence much further than he had in his reports.  Mr Morley gave evidence on two occasions, the first being on 17 February and 18 February, and the second being on 24 March and 25 March.

One of the burning issues in the case - and that to which Dr Perrett's evidence was to be directed - is whether a pedicle screw had been inserted too far into the plaintiff's sacrum, so far as to injure a nerve root, thus causing him great pain down his left leg.   The plaintiff claims it had: the defendants deny it.

In his report of March 1996 Mr Morley said:-

"Post-operatively he was returned to the High Dependency Unit, but the notes show his left leg pain, numbness and weakness persisted unchanged.  Reviewing his x-ray reports, he had a post-operative x-ray on the 10th May 1991, this report reads: 'The appearance following Luque spine fusion between L4 and S1 levels is noted.  The vertebral alignment is satisfactory, the position of the fusion device is satisfactory.  The right sided sacral screw has penetrated the anterior cortex of the sacrum for a distance of approximately 7mm.' 
...
The post-operative plain x-rays do not comment on any abnormality of placement, with the exception that the right sacral screw is placed directly anterior/posterior and is proud by 7mm.  The left pedicle screw is similarly placed, but unfortunately there is no way of telling whether this has penetrated the anterior cortex, although it does not look obviously too long on the plain films taken in the lateral projection.  The subsequent scans, unfortunately, do not go down to the level of the tips of the pedicle screws, and therefore there is no evidence anywhere of the exact placement of the screws.   There are inherent dangers, both neural and vascular in placing sacral screws through the front of the sacrum, this is particularly true in males where it is difficult to direct the screws towards the sacral promontory and they tend to come out further lateral where both neural and vascular injury can occur.

Immediately following the operative procedure Mr Lucas complained of pain in the left leg, i.e. the opposite leg from where he had previously had pain.  This should have suggested that there was an element of mechanical impingement for the pain was on the opposite side to his decompression and was typically the pain of neural compression/irritation, and was described as burning.  The notes seem to suggest that this was both L4 and L5 in distribution."

From all the evidence I have heard I am satisfied that what Mr Morley wrote shewed quite clearly his view: a screw had gone in too far and caused injury.  I do not know when Mr Morley's report was given to the defendants.  I was not told that but I assume confidently it was before the pre-trial conference on  25 June 1996.  That report signalled quite clearly to the defence that placement of the pedicle screw was to be an issue at trial.

Mr Halliday conceded that by the time he opened he knew what evidence Dr Perrett would give.  That was two months before Dr Perrett was to be called.  Yet still the solicitors for the defendants had provided the plaintiff with nothing but briefing notes.

In the course of the argument as to whether I should allow Mr Halliday to call Dr Perrett I asked that Dr Perrett prepare a report.  He did so at short notice.  By that time I had told Mr Halliday definitely that in any case I would not allow Dr Perrett to give evidence on new matter.  It was certainly too late to introduce new matter without any notice to the plaintiff: had the Rules been followed, of course Dr Perrett could have given evidence on new matters.  His evidence, if any, at this stage must be confined to rebuttal.  Accordingly the report did not contain the new material which I had been told, in argument,  Dr Perrett was prepared to describe.

I was shewn a copy of the report.  It was all based on facts known in and on X-rays from 1991.  So far as I could see, it could have been written at any time from the latter part of 1991.  Yet it was not produced until the day before Dr Perrett was to give evidence, in the last stages of the defence case!

Mr Halliday steadfastly maintained that because he was taken by surprise by Mr Morley's evidence there was no reason before then to have considered calling Dr Perrett.  I do not accept that:  what Mr Morley was going to say was plain enough from his report of March 1996.

Mr Halliday conceded that there had been no reason why Dr Perrett should not have made the report and it given to the plaintiff at least from before he opened the defence case.  He conceded at least a two month delay.

Mr Halliday argued that justice demanded I hear all the facts.  Yet justice is a matter of being fair to both sides.  Mr Cameron (and Mr Frayne) said that had there been a report from Dr Perrett the plaintiff's case would have been run differently.  I see no reason to go behind that assertion.  I accept it.

The remedies given in R38.02 would be quite inappropriate here.  At this late stage of the hearing - a hearing which has already gone at least twice as long as estimated - there is no way of curing the prejudice to the plaintiff if Dr Perrett were to give evidence.

On the other hand, in my view, the defendant had no excuse for not having obtained a report from Dr Perrett (or some other radiologist) long ago and made it available to the plaintiff in accordance with the Rules.  Now it is too late.

If a report had been produced at the time of the defence opening I may have been tempted to allow the evidence in.  At least the plaintiff would have been able to cross-examine the defence experts in the light of it and perhaps to call rebutting evidence.  By the time the report was produced it was just too late.

I refused Mr Halliday's application to call Dr Perrett.