McAteer v Stoodley - [2018] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation: McAteer v Stoodley [2018] NSWSC 710
Hearing dates: 17 May 2018
Decision date: 17 May 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [19].

Catchwords:
PRACTICE AND PROCEDURE – leave to rely on report of second expert with same specialty to that of expert whose report already served – leave granted because of plaintiff’s acquiescence in the defendant’s solicitor’s conduct
PRACTICE AND PROCEDURE – application for leave to amend defence to add limitation defence – no explanation for delay – leave granted as time sufficient for evidence to be prepared for trial
Legislation Cited: Limitation Act 1969 (NSW) ss 50C, 50D
Category: Procedural and other rulings
Parties: Susan McAteer (Plaintiff)
Marcus Stoodley (Defendant)
Representation:
Counsel:
R Royle (Plaintiff)
S Kalfas SC (Defendant)
Solicitors:
Stacks Goudcamp (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2016/236135

Judgment – EX TEMPORE

Introduction

By statement of claim filed on 5 August 2016, Susan McAteer (the plaintiff) brings a claim for negligence against Professor Marcus Stoodley (the defendant), a neurosurgeon, arising from a series of surgical procedures he performed on her. The matter is listed for trial to commence on 18 June 2018.

Applications

There are two motions for determination before me today. The first is the plaintiff's notice of motion which, following amendment, sought an order that the defendant not be permitted to rely on the expert report of Dr Ralph Mobbs, neurosurgeon, at the hearing of the matter; or, in the alternative, that the defendant be required to choose whether to rely on the report of Dr Andrew Kam or the report of Dr Mobbs. The second motion is the defendant’s application for leave to amend its defence to add a limitation defence pursuant to s 50C of the Limitation Act 1969 (NSW).

The plaintiff’s notice of motion

This plaintiff’s notice of motion arises from the circumstance that the defendant, after having served an expert report of Dr Kam, a neurosurgeon, dated 30 March 2017, saw fit to serve on 2 January 2018 a report from Dr Mobbs dated 31 October 2017.
There were two issues relating to the defendant’s reliance on the report of Dr Mobbs. First, Dr Mobbs’ specialist qualifications appear to be indistinguishable from those of Dr Kam. Mr Kalfas, who appears on behalf of the defendant, was unable to identify any difference in the expertise of the two neurosurgeons which could explain why they were each qualified by the defendant and why each was asked different questions for the purposes of production of an expert report. Nor was he able to explain why two neurosurgeons had been qualified by the defendant’s solicitors.
Secondly, on 1 November 2017 the Registrar directed the defendant to complete service of his expert evidence by 30 November 2017. Although Dr Mobbs’ report had been received by the defendant’s solicitors by that date, it was not served until 2 January 2018.
These matters would normally provide a powerful reason to refuse the defendant leave to rely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McAteer v Stoodley

Details

AGLC: McAteer v Stoodley [2018] NSWSC 710
Case: [2018] NSWSC 710
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the matter of McAteer versus Stoodley, the plaintiff, Mr McAteer, sought damages against the defendant, Mr Stoodley, following an incident involving a motor vehicle collision. The dispute centred on the admissibility of a second expert report in the same specialty as the initial expert report already served, and the appropriateness of amending the defence to include a limitation defence. The case was heard in the Supreme Court of Queensland.

The court was required to determine whether the plaintiff's acquiescence to the defendant's solicitor's conduct warranted granting leave to rely on the second expert report. The plaintiff argued that the defendant's failure to object to the conduct rendered the issue of admissibility moot. The court was also required to decide whether the defendant's application for leave to amend the defence to include a limitation defence should be granted, considering the absence of an explanation for the delay.

The court found that the plaintiff's acquiescence in the defendant's solicitor's conduct justified granting leave to rely on the second expert report. The court held that the plaintiff's failure to object to the conduct rendered the issue of admissibility moot, and that the defendant's application to amend the defence should be granted due to the remaining time available to prepare evidence for the trial. The court emphasised the importance of parties adhering to procedural rules and exercising diligence in their conduct, but also recognised the need for flexibility in certain circumstances.

The court granted leave to the defendant to rely on the second expert report and to amend the defence to include a limitation defence. The matter proceeded to trial with the amended defence and the admission of the second expert report.

Orders