Morgan v Murrumbidgee Local Health District

[2021] NSWSC 1099

Supreme Court

New South Wales

Medium Neutral Citation:	Morgan v Murrumbidgee Local Health District [2021] NSWSC 1099
Hearing dates:	23 August 2021
Date of orders:	23 August 2021
Decision date:	23 August 2021
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The defendant is granted leave to rely upon the expert report of Dr Shelley-Jones
Catchwords:	CIVIL PROCEDURE – leave sought to rely on expert’s report – whether consent orders so formulated contemplated fresh evidence of newly qualified expert – UCPR r 31.28 – whether “exceptional circumstances” exist – whether prejudice would flow from grant of leave – late expansion of plaintiffs’ case – capability to meet new material
Legislation Cited:	Uniform Civil Procedure Rules 2005 r 31.28
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Kirsten Morgan (First Plaintiff) Mathew Sparks (Second Plaintiff) Murrumbidgee Local Health District (Defendant)
Representation:	Counsel: M. Cranitch SC with J.A. Hillier (Plaintiffs) J. Kirk SC with M. Gerace (Defendant) Solicitors: Commins Hendriks Pty Ltd (Plaintiffs) McCabe Curwood (Defendant)
File Number(s):	2018/00145623
Publication restriction:	Nil

Ex Tempore Judgment - revised

1. These matters are claims for nervous shock arising out of the stillbirth of the plaintiffs' son, Tully, at the Wagga Wagga Rural Referral Hospital in 2016.

2. The matters are set down for a joint hearing commencing on 30 August 2016. That hearing date was fixed, as long hearings usually are, some time ago, in July 2020; that is to say a little over 12 months ago. Again, in the nature of these things, preparation has continued notwithstanding the statement of the parties that primary evidence had been obtained at the time the matter was set down. I do not regard that circumstance as in any way unusual where there is a significant time lapse between fixing a matter and the listing. It is only to be expected that additional evidence will be obtained and exchanged. Often that will happen by consent without any disputation between or among the parties.

3. In this case, notwithstanding the careful case management of the Professional Negligence List Judge, Harrison J, some significant disputes have arisen about whether certain evidence ought to be available to either party at the hearing commencing next week. The first dispute concerns a supplementary report of Professor Welsh dated 2 August 2021 obtained on behalf of the defendant. That dispute has now evaporated and the plaintiff acknowledges that the defendant should be entitled to rely upon that supplementary report. Had that concession not been made, I would have ordered that the defendant have leave, to the extent necessary, to rely upon that report as it seems to me it was clearly within the contemplation of the parties and the Court when the consent orders made by Harrison J on 24 June 2021 were formulated.

4. I have already indicated to the parties before hearing submissions that given that I have had the benefit of over 200 pages of affidavit evidence, which I took the opportunity to read over the weekend, that I had certain provisional views about the matters in dispute. Senior Counsel kindly allowed me to express them. I will say straight away that I have indicated, and counsel accept, that the defendant ought to have leave, again, if necessary, to rely upon the statement of Dr Nita Dhupar dated 16 August 2021.

5. Dr Dhupar was a specialist obstetrician who examined the first plaintiff at the hospital in March 2016, and I have explained why, in my view, the defendant ought to have that leave. I accept that there is a reasonable explanation for the delay in obtaining the statement and that the evidence of Dr Dhupar is, to say the least, relevant to matters in issue. I am also of the view that it can, to the extent necessary, readily be challenged by counsel for the plaintiffs in cross-examination.

6. I also indicated that I would grant leave, again, if necessary, to the plaintiff to call Ms Donna Hann to give evidence. Ms Hann is a diabetic educator based in Wagga Wagga who treated the first plaintiff - if that's the correct verb - in relation to her diabetic condition and, in particular, in relation to the fitting of a new and updated insulin pump during the currency of her pregnancy with Tully.

7. Neither counsel dispute my indications in relation to either of those matters.

8. What remains in dispute is whether the defendant should have leave to rely upon an expert report of Dr Shelley-Jones of 28 July 2021.

9. Dr Shelley-Jones is a highly qualified expert obstetrician/gynaecologist. He had not previously provided a report in the proceedings. Although I accept the argument of Mr Kirk SC as to the clarity, or otherwise, with which the consent orders were drafted, I would not myself understand order 5 of 24 June to contemplate a new or fresh report from an expert not previously qualified to give evidence by the defendant in the case. Nor would I regard an expert's report of that nature to be covered by the expression "evidentiary statement" either.

10. However, it is necessary to descend into some of the detail about how Dr Shelley-Jones's report came into existence in order to make a decision about whether the defendant should have leave to rely upon the report over the objection of the plaintiffs.

11. For Mr Kirk's argument, the starting point is to bear in mind that the plaintiffs were granted leave to file an amended statement of claim on 25 June 2021. From my inspection of the file, I am aware that there had been considerable agitation and disputation about that amended pleading which was finally resolved by the same procedural arrangements that resulted in the consent orders of 24 June 2021 to which I have referred. I am of the view that the amended statement of claim significantly amplifies the previous pleading where it otherwise it would hardly have been forensically necessary. I am not completely convinced that an amendment that the duty owed by a hospital to its patient is a non-delegable duty adds much. I accept what Mr Cranitch SC has said about that. Nor am I persuaded that the expansion of the content of the duty of care from “reasonable care in the management” of the first plaintiff's pregnancy to “advise, care, treatment and management” of that pregnancy adds a great deal, although I do not regard the amplification as mere surplusage.

12. It is clear to me that the amended statement of claim was drawn with an attentive eye to the detail of the plaintiffs' expert evidence, and to that extent does significantly amplify the particulars of the case that the defendant has to meet, although in substance the matrix of fact remains the same.

13. The affidavit of the defendant's solicitor of 17 August 2021, as Mr Kirk drew to my attention, explains the circumstances in which the report of Dr Shelley-Jones was brought into existence. I find, in accordance with paragraph 44 of the affidavit of Ms Olga Sclavenitis of 17 August 2021, that after Mr Kirk had been briefed, somewhat late in the piece, and had conferred with Ms Gerace of counsel, his learned junior, he advised that enquiries ought to be made to ascertain whether an expert could be qualified who had particular experience in the delivery of obstetric care in regional NSW. In that regard, Mr Kirk had regard to: aspects of the further amended statement of claim that emphasised allegations in respect of the manner of the delivery of the services at the hospital; consideration that none of the plaintiffs' experts, that is to say obstetric experts, practiced in NSW; and that Professor Welsh, the defendant's expert obstetrician and gynaecologist, practiced in a tertiary teaching hospital in the great metropolis of Sydney.

14. I allowed myself to remark during the course of the argument that Wagga Wagga is a city of some 65,000 souls and has a claim to being the largest inland city in the Commonwealth of Australia. But for the purpose of the argument, I am prepared to accept, perhaps, that at the factual level the type of medical services available west of the Great Dividing Range might differ from those available, to adopt Mr Kirk's expression, at a tertiary teaching hospital in Sydney. Indeed, there is some reference to that in passing in the second report of Professor Welsh without any real descent into an evaluation of whether that observation applies to the defendant's hospital.

15. I should say, as I did point out in arguendo, Dr Shelley-Jones, although as I have said, a highly qualified expert like the other experts in the case, himself is associated with a large teaching hospital in Sydney. But he says in his report that he is an occasional obstetrics and gynaecology consultant at Broken Hill Base Hospital.

16. However, he also says, I assume from his professional experience, that "Wagga Wagga Rural Referral Hospital offered access to all the services that might reasonably be needed to manage the pregnancy of an insulin dependent diabetic: obstetricians, an endocrinologist, paediatric services, diabetic educators, imaging services, midwives, and the usual complement of allied health professionals, including dieticians. I can see no evidence that these services were denied to [the first plaintiff].”

17. He went to observe, having made that comment, that “Australian country towns are often of insufficient scale to support a full suite of ‘in house’ sub-specialists, technicians and allied health professionals”, but I did not form the impression from the whole of his report that he regarded that comment to qualify what he said about the full range of services offered by the defendant's hospital.

18. I should interpolate that the first plaintiff is a type 1 insulin-dependent diabetic, if I have not said so already.

19. It seemed to me that if the reasonable rationale for engaging Dr Shelley-Jones was to explore that issue, and I can understand the thinking in that regard, Dr Shelley-Jones's report in its express terms does not suggest in any way that the good citizens of Wagga Wagga are denied a first-rate hospital facility. It is apparent, if I may say so, that otherwise Dr Shelley-Jones' opinion is favourable to the defendant. His opinion largely aligns with that of Professor Welsh.

20. I wish to make it clear that the fact that Dr Shelley-Jones' report was two days late is a matter of no moment. Had that been the only issue for my determination, this decision would have been much easier.

21. Counsel for the plaintiffs have drawn Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) to my attention. By sub-rule (3), an expert's report not served in accordance with the rules or the prior directions of the court may not be relied upon by a party except by leave of the Court. Dr Shelley-Jones' report falls into that category.

By sub-rule (4), leave is not to be granted “unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with sub-rule (1)”. Condition (b) does not arise in this case.

22. “Exceptional circumstances” is, of course, a wide expression, but generally speaking, may be taken as connoting something out of the ordinary; or beyond what is normal or routine. It seems to me that, in the end, the concern that gave rise to Dr Shelley-Jones' qualification is not borne out by the body of his report or opinion. Had it been, perhaps difficult questions may have arisen about the position of the plaintiffs in relation to meeting any attenuation of what reasonable care required at a practical level at the defendant's hospital. I repeat that question does not arise.

23. I also accept that the plaintiffs, with respect, are not really prejudiced by the general expression of professional opinion by Dr Shelley-Jones. They have eminently qualified experts in the field who have already expressed opinions about what the standard of care required in this particular case, and who have already joined issue, if I can put it that way, with the opinions of Professor Welsh.

24. It seems to me that, although a conference might be preferable, given the diaspora of the plaintiff's cohort of experts, that may not be practicable, but their written opinion as to Dr Shelley-Jones's views could readily be obtained.

25. Were there any lingering doubt about prejudice, I bear in mind that it is contemplated in accordance with the rules and the usual practice of the Court, that the experts will confer, I think on Wednesday, to discuss the remaining issues among themselves, and that the plaintiff will be at no disadvantage in that process even with Dr Shelley-Jones added to the fray. Therefore, the only question that remains is whether the defendant should at this stage be allowed to conscript another expert in the same field as Professor Welsh to bolster or add weight to his opinion, having regard to the number of experts that array against the defendant.

26. It seems to me that the absence of prejudice is not determinative of the statutory test of exceptional circumstances, but nor is it irrelevant given the recent procedural history of the matter.

27. Although I am not of the view that Dr Shelley-Jones' report is covered by the consent orders made by Justice Harrison, the absence of prejudice, the late amplification of the plaintiff's case in the further amended statement of claim, and the general complexity of the liability questions involved in the case persuade me that this is out of the ordinary and beyond the routine, and although my provisional view was against the admission of Dr Shelley Jones's report, I am persuaded that the defendant ought to be granted leave to rely upon his opinion for the purpose of the case, and I will make that order.

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Decision last updated: 31 August 2021