Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital Pty Limited t/as Westmead Private Hospital

[2022] NSWSC 235

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital Pty Limited t/as Westmead Private Hospital [2022] NSWSC 235

Hearing dates:

4 March 2022

Date of orders:

8 March 2022

Decision date:

08 March 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) Leave for the plaintiff to serve and rely upon Mr Diment’s report dated 12 February 2021 at trial is refused.

(2) The plaintiff is to pay the defendant’s costs.

Catchwords:

EVIDENCE – Opinion evidence – Exceptions – Expert evidence – Evidence Act 1995 (NSW) s 79 – Makita v Sporules (2001) 52 NSWLR 705 – Whether evidence is admissible? – Inadmissible

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 31.28, 31.44 and 31.37

Evidence Act 1995 (NSW) s 79

Cases Cited:

Makita v Sporules (2001) 52 NSWLR 705

Category:

Procedural rulings

Parties:

Mary Perera (Plaintiff)
Alpha Westmead Hospital Pty Limited t/as Westmead Private Hospital (Defendant)

Representation:

Counsel:
J. Morris SC with R. Bianchi (Plaintiff)
S. Kalfas SC with K. Burke (Defendant)

Solicitors:
Bilias & Associates (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2017/374274

Publication restriction:

Nil

Judgment

1. By notice of motion filed 21 February 2022, the defendant seeks that the report of Mr Diment dated 12 February 2021 be inadmissible at the substantive hearing or alternatively subject to the plaintiff seeking and obtaining leave to avoid the prohibition provision under r 31.44 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and seeking and obtaining leave pursuant to r 31.28(4) of the UCPR to rely upon Mr Diment’s report, the defendant granted leave to qualify a clinical neuropsychologist to assess the plaintiff and provide a report in response to the opinions expressed by Mr Diment.

2. While the plaintiff opposed the orders sought, at the hearing Mr J Morris SC, appearing for the plaintiff, proffered a third alternatively, namely that the portions of Mr Diment’s report where he reviews raw data obtained by Dr Lucas be excised. Mr Kalfas SC appeared for the defendant.

3. The plaintiff is Mary Perera. The defendant is Alpha Westmead Hospital Pty Limited t/as Westmead Private Hospital.

4. The defendant relied upon the supporting affidavits of Brit Mainhoff, solicitor, sworn 10 February 2022 (“Brit Mainhoff Aff 10 February 2022”) and 18 February 2022.

5. The trial is listed for hearing commencing on 16 May 2022. Breach of duty of care has been admitted.

Background

6. The plaintiff is currently 54 years old. In 1995 she underwent a successful heart valve repair in Sir Lanka. In July 2013 she underwent a second operation for mitral valve replacement at Westmead Private Hospital. On the third day post operatively, the plaintiff suffered cardiac arrest. She was resuscitated and remained in intensive care for around 80 days. She underwent further surgical operations while in ICU in relation to the effects of the cardiac arrest.

7. The plaintiff underwent rehabilitation at Mount Wilga Private Rehabilitation Hospital and returned home to the care of her husband, Ranjan Perera, in February 2014. She has issues with regards to management of her post hypoxic action myoclonus (Lance-Adams syndrome): See report of Dr Sara Lucas dated 11 November 2020 (Ex 1, p 1-2).

8. On 11 September 2020, consequent upon the defendant agreeing to the parties qualifying a single neuropsychologist expert, the plaintiff filed a notice of motion seeking orders pursuant to UCPR r 31.37 that a single neuropsychologist expert be appointed to conduct neuropsychometric testing, and provide a report, with orders made by the Court on 24 September 2020, granting leave for the appointment of a single neuropsychologist. On 11 November 2020, Dr Lucas, the agreed neuropsychologist provided the single report: see Ex 1.

9. Meanwhile, without seeking the defendant’s consent, the plaintiff engaged another expert, Mr Diment, psychologist, to assess the plaintiff and provide a report. Mr Diment reviewed the raw data of the neuropsychological testing that was referred to in the report of Dr Lucas from which Mr Diment provided a report dated 12 February 2021.

10. Despite the defendant's correspondence putting the plaintiff on notice that leave is required for reliance upon Mr Diment's report, the plaintiff has failed to seek leave, since February 2021. The plaintiff has had a number of opportunities to seek such leave, namely, making an application during the course of three separate directions hearing but never did so.

The defendant’s grounds for objection to the use of Mr Diment's report at hearing:

11. There are two grounds of objection to the plaintiff's reliance upon the report of Mr Diment, dated 12 February 2021 at hearing. The first ground is procedural in nature and the second ground is of a substantive nature. They are:

1. the plaintiff qualified Mr Diment, psychologist and subsequently obtained Mr Diment's report contrary to the requirements of an exception of leave being granted pursuant to UCPR 31.28 and contrary to the prohibition contained within UCPR 31.44. By reason of non-compliance with UCPR 31.28(1)(a), and the failure to seek leave to reply upon the report, the report of Mr Diment is inadmissible at the hearing of the proceedings. Rule 31.44 of the UCPR prohibits a party to proceedings from adducing evidence "of any other expert on any issue arising in proceedings if a parties' single expert has been engaged... in relation to that issue." (procedural)

2. (Mr Diment's study, training and experience does not provide him with the specialised knowledge, required to express his opinion relating to the plaintiff's cognitive impairment/function and offends s 79 of the Evidence Act 1995 (NSW) and the Makita principles: See Makita v Sporules (2001) 52 NSWLR 705 (“Makita”). (substantive)

Resolution

12. Although Mr Diment’s report was obtained over one year ago, the plaintiff’s legal representatives have not sought leave to rely upon this report.

13. More importantly, it is my view that Mr Diment’s report does not comply with s 79 of the Evidence Act 1995. Section 79 of the evidence act reads:

“Exception: opinions based on specialised knowledge

(1)  If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2)  To avoid doubt, and without limiting subsection (1):

(a)  a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b)  a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i)  the development and behaviour of children generally;

(ii)  the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.”

14. At [85] of Makita, Heydon JA (with whom Powell and Priestly JJA agreed) stated:

“[85]    In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge.”

15. Mr Diment is a psychologist. His Curriculum Vitae (CV) discloses that he is a full member of the Australian Psychological Society College of Health Psychologists. He is not a full member of the Australian Psychological Society College of Clinical Neuropsychologists. His CV does not show he has an endorsement in Clinical Neuropsychology or any qualifications associated with Neuropsychology skills, training and experience.

16. The issues addressed by Mr Diment are the same issues addressed by Dr Lucas in her report, namely:

1. Whether the plaintiff suffered cognitive impairment and her ability to process complex information, and

2. If so, whether it impacts upon the plaintiff's ability to manage financial affairs.

17. Where the court does make an order appointing a single expert pursuant to UCPR 31.37, no party is permitted to adduce evidence of another expert on the same issue, except by leave. Although the plaintiff’s legal representatives requested a neuropsychologist’s report, it then wants to disavow themselves of that agreement.

18. Report of Dr Hepner, a clinical neuropsychologist in her report dated 2 February 2022 has commented as to her difficulties with Mr Diment’s report. In her report, Dr Hepner expresses the opinion that the assessment of cognitive function of a person with confirmed or suspected neurological impairments, such as hypoxic brain injury requires specialised skills and capabilities in order to select, administer and interpret the various tests for the purpose of evaluating the cognitive function, diagnosis, and differential diagnosis that impact upon cognitive function.

19. The requirement for specialised skills, training and experience when testing persons with confirmed or suspected hypoxic brain injury, such as the plaintiff and then interpreting test results to evaluate cognitive function is significant in this matter. Dr Hepner, having reviewed the opinion reached by Mr Diment identifies a number of errors, inaccuracies and departures from the expected standard of practice required of a neuropsychologist practice principles. They include:

1. Mr Diment's observations of the raw data tests from Dr Lucas is inaccurate;

2. The composite score of the Full Scale IQ-4 reported as 65 said to be "impaired-borderline, is incorrect, the score falls within the "extremely low/impaired range, not borderline; and had the test fallen within the extremely low/impaired range, cognitive deficits would have been observed by the treating neurologist, Dr Mahant;

3. There are inconsistencies in the similarities subtest, and the plaintiff's ability to ask and answer questions and understand responses, which Mr Diment has not explained;

4. It is not possible to use cognitive/psychometric testing to determine whether plaintiff did not have cognitive function to manager her financial affairs as no measure of testing effort was administered by Mr Diment;

5. There is no explanation by Mr Diment as to the cause of the poor results of the WAS1-II, which is contrary to clinical neuropsychological practice, as the test scores are integral to the assessment process;

6. The opinion expressed by Mr Diment regarding the TOMM results are incorrect, the literature shows that performance on measures of tests, particularly with TOMM are unaffected by depression, anxiety and fatigue;

7. Retesting the plaintiff less than 4 months after she was tested by Dr Lucas is outside the minimum retest standard provided for under the Neuropsychological assessment of children and adults with traumatic brain injury guidelines.

20. If the plaintiff is permitted to rely upon Mr Diment’s report, the defendant’s fallback position is that it seeks leave to qualify a clinical neuropsychologist to assess and provide a report in response to the opinions expressed by Mr Diment. It is common ground that if the Court makes this order, the upcoming hearing date will need to be vacated.

21. Another option proffered by Counsel for the plaintiff is that only portions of Mr Diment’s report be admitted. They are the portions where he to his interview with the plaintiff and her husband, offers his opinions about whether the plaintiff can manage her financial affairs. It was submitted that the balance of the report can be excised. Having read Mr Diment’s report, particularly his summary/opinion, it is my view that his opinions rely on his interpretation of raw material of the neuropsychometric testing: See Brit Mainhoff Aff 10 February 2022 at 2-13. There is no bright line between his interpretation of the raw data and the views he expresses. In other words, his opinions depend on his analysis of the neuropsychometric testing. For this reason, this alternative option is not satisfactory.

Additional reports covering proposition of whether the plaintiff can manage her finances

22. In additional to the report of Dr Lucas who expresses her opinion on the following topics:

1. In your opinion, does the plaintiff suffer from any impairment in cognition and in her ability to process complex information? If so, what are those impairments?

2. In your opinion, if the plaintiff does suffer from cognitive impairment, how does this impact upon her ability to manage her activities of daily living, and particularly her ability to manage her financial affairs?

23. On 30 January 2020, the plaintiff requested a report from Dr Allnutt, a psychiatrist, seeking his opinion on whether the plaintiff is able to manage her financial affairs, her capacity and ability to process complex information. In particular, whether she has the cognitive function to manage her own financial affairs and live independently in the community. Hence, in addition to the reports of Dr Lucas, the plaintiff does have a report from a psychiatrist as to whether the plaintiff can manage her financial affairs.

24. While I am reluctant to make an interlocutory decision in this type of matter, as it is usually one for the trial judge to make (to date no Judge has been allocated to hear this matter), in order for the hearing to go ahead on 16 May 2022, I will do so here. Aside from the plaintiff’s non-compliance with procedural issues, it is my view that Mr Diment’s report does not comply with s 79 of the Evidence Act for the reasons set out above by Dr Hepner. These criticisms cannot be cured by amendment. The defendant’s fallback position that it obtain another neuropsychologist’s report is also not viable as it would mean that the hearing date would need to be vacated. In these circumstances, leave is not granted for the plaintiff to rely on the report of Mr Diment.

Costs

25. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs.

The Court orders:

1. Leave for the plaintiff to serve and rely upon Mr Diment’s report dated 12 February 2021 at trial is refused.

2. The plaintiff is to pay the defendant’s costs.

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Amendments

08 March 2022 - Legislation cited amended.

08 March 2022 - Representation amended.

08 March 2022 - Representation amended.

Decision last updated: 08 March 2022