Salzke v Khoury

[2009] NSWCA 195

Reported Decision: 74 NSWLR 580

New South Wales

Court of Appeal

CITATION:	Salzke v Khoury [2009] NSWCA 195 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 July 2009
JUDGMENT DATE:	10 August 2009
JUDGMENT OF:	Ipp JA at 1; Basten JA at 113; Gzell J at 124
DECISION:	(a) The applications for leave to appeal are granted. (b) The appeals are upheld with costs. (c) The orders made by the Judicial Registrar on 29 July 2008 are set aside. (d) The respondents' motions to dismiss Ms Salzke's claim are set aside with costs. (e) Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
CATCHWORDS:	PROCEDURE - miscellaneous procedural matters - other matters - leave to appeal and appeal from Judicial Registrar of the District Court - where Judicial Registrar granted motions to dismiss the plaintiff's case under UCPR r 31.36 - service and content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - delays in serving expert's reports - requirement that expert's report "support" plaintiff's case - omission of Judicial Registrar to refer expressly to the prejudice that the plaintiff would suffer were motions to dismiss granted. - PROCEDURE - miscellaneous procedural matters - other matters - motion to adduce further evidence on application for leave to appeal - additional expert's reports - where additional reports supplement and clarify earlier report - where earlier report generated misunderstanding.
LEGISLATION CITED:	Civil Procedure Act 2005 District Court Rules 1973 Disrict Court Rule (Professional Negligence Claims) 1999 Health Services Act 1997 Legal Profession Act 2004 Practice Note 104: Professional Negligence List (23 December 1998) Suitors' Fund Act 1951 Supreme Court Rules 1970 Supreme Court Rules (Amendment No. 325) 1998 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Erhard v Bhatia [2002] NSWCA 388 Micallef v ICI Operations Pty Ltd [2001] NSWCA 274 National Justice Compania Naviera SA v Prudential Assurance Company Ltd (the "Ikarian Reefer") [1993] 2 Lloyds Rep 68 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 Pell v Hodges [2007] NSWCA 234 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Wickstead v Browne (1992) 30 NSWLR 1
TEXTS CITED:	Justice Abadee, "Commentary: the Professional Negligence List in the Common Law Division of the Supreme Court" (May 1999) Lord Woolf, Access to Justice: final report (July 1996)
PARTIES:	Renate Salzke (Applicant) Dr Elie Khoury (First Respondent) Greater Southern Area Health Service (Second Respondent)
FILE NUMBER(S):	CA 40363/08; CA 40426/08
COUNSEL:	E G Romaniuk (Applicant) S M Kettle (First Respondent) J Downing (Second Respondent)
SOLICITORS:	Taylor & Scott Lawyers (Applicant) GIO General Insurance Law Department (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6067/06
LOWER COURT JUDICIAL OFFICER:	Judicial Registrar McDonald
LOWER COURT DATE OF DECISION:	29 July 2008

CA 40363/08, CA 40426/08
DC 6067/06

IPP JA
BASTEN JA
GZELL J

10 AUGUST 2009

Renate Salzke v Dr Elie Khoury & Anor

Judgment

:

Ms Salzke’s applications for leave to appeal and appeals

2 These reasons concern two concurrent applications for leave to appeal and appeal. They relate to an action in professional negligence brought in the District Court by the applicant, Ms Salzke, against Dr Khoury (the first respondent) and Greater Southern Area Health Service (the second respondent). (I shall refer to the second respondent as the “Health Service”). It appears to be common ground that the Health Service is a statutory body although this allegation does not appear in the papers before this Court.

3 On 29 July 2008 the Judicial Registrar of the District Court (to whom I shall refer as the “Registrar”), on applications made by each of the respondents, dismissed Ms Salzke’s action under Pt 31 r 36(3) of the Uniform Civil Procedure Rules 2005 (“UCPR”). By the applications for leave to appeal and appeals, Ms Salzke seeks to have the Registrar’s decision set aside. Essentially, Ms Salzke contends that she did not breach UCPR 31.36, alternatively, if she did, the Registrar erred in the exercise of her discretion.

The background circumstances

4 Ms Salzke was born on 23 February 1957. In 1977 she was involved in a motor vehicle accident as a result of which she required surgery to her right hip. Between then and December 2003 she underwent further surgical procedures to her hip. Since 1985 she has received a disability support pension. Until December 2003, she worked casually as a fruit picker.

5 On 15 December 2003, Ms Salzke underwent a bilateral hip replacement at Albury Base Hospital. According to Ms Salzke’s statement of claim, the Health Service had the care, control and management of the Albury Base Hospital and Dr Khoury, an orthopaedic surgeon, performed the operation. The statement of claim implicitly alleges that the Health Service is vicariously liable for the conduct of Dr Khoury.

6 On 22 December 2003, Ms Salzke was discharged from Albury Base Hospital. On 5 January 2004 she was re-admitted with a haematoma and infection in the right hip. She was diagnosed with methicillian sensitive staphylococcus aureus (“golden staph”). On 22 January 2004 Ms Salzke was discharged from the hospital. While in hospital, the infection was treated.

7 In April 2004 Ms Salzke slipped and fell, thereby fracturing the left acetabulum and pelvis. On 7 May 2004 she was re-admitted to Albury Base Hospital where she was again treated. She remained in that hospital until 2 August 2004 undergoing various procedures.

8 On 2 August 2004 Ms Salzke was discharged from Albury Base Hospital and transferred to Holbrook District Hospital. She remained in Holbrook District Hospital until 24 September 2004.

9 On 17 March 2005, Ms Salzke was re-admitted to Albury Base Hospital. She was discharged on 16 June 2005.

10 Dr Khoury managed Ms Salzke’s treatment at both Albury Base Hospital and Holbrook District Hospital. Under his management, Ms Salzke’s infection was treated, from time to time, by administering the drug, gentamicin.

11 It will be recalled that Ms Salzke’s bilateral hip replacement took place on 15 December 2003. On 14 December 2006, she commenced proceedings in the District Court against the respondents. According to a judgment delivered by the Registrar on 21 April 2008, she did so “because her solicitors were concerned about the expiration of the limitation period”. Throughout the proceedings the parties and the Registrar have dealt with the matter on the assumption that the limitation period in relation to Ms Salzke’s claim expired on 15 December 2006. I shall make the same assumption.

12 When filing her statement of claim on 15 December 2006, Ms Salzke did not comply with UCPR 31.36 but obtained leave from an assistant registrar of the District Court to file her statement of claim without filing expert reports as the rule contemplates. It is sufficient at this stage to say that UCPR 31.36(1) provides that, unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting the breach of duty of care alleged against each defendant, the general nature and extent of damage alleged, and the causal relationship alleged between such breach of duty and the damage alleged. UCPR 31.36(3) provides that, if a party fails to comply with sub-rule (1), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

13 On 12 January 2007, Ms Salzke’s solicitor served a report by a general surgeon, Dr Peter Conrad, dated 20 December 2006, on the respondents.

14 At a status conference on 25 July 2007 the Registrar, by consent, made an order requiring Ms Salzke to serve “all liability and quantum reports by 26 October 2007”. Ms Salzke did not comply with this order.

15 On 20 December 2007, Dr Khoury filed a notice of motion seeking that proceedings be dismissed under UCPR 31.36(3). On 9 January 2008, Ms Salzke’s solicitor filed an affidavit in response, stating: “proceedings were commenced in December 2006 prior to the matter being fully prepared as a result of limitation period considerations”. The solicitor requested that the matter be stood over for further directions. On 1 February 2008, the Registrar made further consent orders, including an order that Ms Salzke “serve all primary, medical and expert evidence upon which she relies by 28 March 2008”. That order was not complied with.

16 In January 2008 the Health Service filed a notice of motion seeking dismissal of Ms Salzke’s claim on the ground of non-compliance with UCPR 31.36(1), alternatively for want of prosecution. An affidavit by Ms Salzke’s solicitor filed in opposition explained that Ms Salzke had experienced difficulties in obtaining an expert report. On 21 April, the Registrar dismissed the notices of motion and ordered that Ms Salzke serve all expert and medical evidence by 6 June 2008.

17 In her reasons, the Registrar made a number of comments that are relevant in the present proceedings. These were:

“The rule gives the court the discretion to defer the filing of the report. In this case it was exercised when the statement of claim was filed. What the plaintiff really wants is another extension of time to comply with the rule and the order made on 1 February. Similar factors would be considered on that application as on an application to dismiss for want of prosecution. I must balance the prejudice between the parties … .”

And:

“In this case, it is clear that the plaintiff intends to supplement Dr Conrad’s opinion. What has been obtained is not sufficient to comply with the rule. The report served does not provide the basis for a case against Dr Khoury though it does provide support for a cause of action against the hospital.”

And:

“The prejudice to the plaintiff from the dismissal of these proceedings is practically insurmountable. There is no evidence of actual prejudice to the defendants, although I understand their frustration and the difficulty that the passing of time inevitably causes … . The default is in my view very serious, but in this case, taking the delay and the reasons for it into account, not serious enough to dismiss the proceedings for want of prosecution.”

And:
“The prejudice to the plaintiff from the failure to make that order is so great that the court should allow an extension of time to provide the expert evidence. However the plaintiff and her legal advisers are now on notice that further breach of the orders of the court and therefore of s 56 of the Civil Procedure Act will not be tolerated.”

18 On 8 May 2008, Ms Salzke’s solicitors requested Professor Rawlinson, a virologist, to provide an expert’s report. The letter of instructions to Professor Rawlinson requested him to assume certain facts to be true. These included the nature of the injuries from which Ms Salzke was suffering and details of the treatment she had received. Professor Rawlinson was provided with certain clinical notes from Albury Base Hospital including those in relation to her admission in December 2003 and in January 2004.

19 On 6 June 2008, Ms Fiona Lyon, an occupational therapist, provided a report in relation to Ms Salzke and on 8 June 2008 Professor Rawlinson provided his report. Ms Lyon’s report was served on the respondents on 10 June 2008 and Professor Rawlinson’s report was served on 2 July 2008. The reports should have been served on 6 June.

20 On 3 July 2008, Dr Khoury filed a notice of motion seeking dismissal of Ms Salzke’s action on the ground of want of prosecution, alternatively failure to comply with UCPR 31.36(1). On the same day, Ms Salzke served an amended statement of claim and amended statement of particulars. On 9 July 2008 the Health Service filed a notice of motion seeking dismissal of Ms Salzke’s claim on the same grounds as Dr Khoury.

21 On 9 July 2008, Ms Salzke served a supplementary report of Dr Conrad, dated 3 July 2008, on the respondents.

22 On 10 July 2008 Ms Salzke filed a notice of motion for an extension of time to file and serve the amended statement of claim. Ms Salzke’s solicitor filed an affidavit in support of this motion. The solicitor stated:

“The plaintiff’s claim is now out of time to be recommenced if it is dismissed. The plaintiff has suffered serious injuries as a result of the matters pleaded in the statement of claim and the amended statement of claim. If the claim against the first defendant is dismissed the plaintiff may suffer serious prejudice … .”

23 The material before the Registrar revealed that the delays in serving expert reports were caused by several factors. One factor was Ms Salzke’s personal situation. She lived in a country town. The number of experts in the town who could express an opinion on the complex issues raised by the facts of her medical condition was limited. She was disabled and impecunious. This meant that she had difficulties in travelling and in being able to attend appointments at the specific times that the experts were available.

24 In addition, delay had been caused by the conduct of a solicitor, who had been employed by the firm Ms Salzke had retained. By July 2008, the solicitor had left the firm.

25 Thirdly, Professor Rawlinson found it difficult to provide a report in time because of the exigencies of his professional work. According to Ms Salzke’s solicitor, “Professor Rawlinson is an eminently qualified and extremely busy practitioner”. The solicitor explained that the failure to comply with the order to serve experts’ reports by 6 June 2008 occurred because Professor Rawlinson did not provide the report in the time he had promised. According to the solicitor, Ms Salzke had consented to serve her primary medical evidence by that date because her counsel had been led to believe that Professor Rawlinson would provide his report in good time before then.

26 The solicitor stated in her affidavit that she expected to be able to complete service of all Ms Salzke’s medical expert evidence by 26 August 2008. She said that she did not anticipate receiving Professor Rawlinson’s supplementary report “much before that date”.

27 The respondents adduced no evidence before the Registrar that a further extension of time would cause them any prejudice.

28 The Registrar heard the three notices of motion on 15 and 17 July 2008. On 29 July 2008 she delivered judgment in which she upheld the respondents’ notices of motion and dismissed the proceedings under UCPR 31.36(3). She dismissed Ms Salzke’s motion for leave to file her amended statement of claim.

Ms Salzke’s motion before the Registrar

29 For some reason that is not explained, Ms Salzke’s notice of motion filed on 10 July 2008 claimed only an extension of time to file and serve her amended statement of claim, and not an extension of time to file her expert reports. This is surprising as Ms Salzke’s solicitor stated in his affidavit supporting that notice of motion that, because of the constraints on Professor Rawlinson’s time, he would not be able to provide his supplementary report much before 26 August 2008.

30 Nevertheless, it must have been plain to all involved in the hearing before the Registrar in July 2008 that one of the bases on which Ms Salzke was opposing the dismissal of her claim was that she needed more time to file a supplementary medical report from Professor Rawlinson. It was implicit in the material she filed in support of her motion that this was the relief she needed and sought, even though it was not expressly claimed.

31 The Registrar’s reasons do not address Ms Salzke’s solicitor’s statement that Professor Rawlinson would not be able to file his supplementary report before 26 August 2008.

32 Her reasons deal only with the question whether or not UCPR 31.36(1) had been satisfied. The Registrar concluded that Ms Salkze had not complied with the rule, upheld the respondents’ motions for dismissal and dismissed Ms Salzke’s motion for an extension of time. The last-mentioned dismissal being, apparently, consequential on her decision to uphold the respondents’ dismissal motions.

33 In my opinion, however, before determining the respondents’ motions, the Registrar should have considered whether the justice of the case required Ms Salzke to be afforded the time sought by her solicitor in his affidavit to file Professor Rawlinson’s supplementary report. There were compelling reasons for her so to proceed. The dismissal of Ms Salzke’s claim was an extreme step to take, a step potentially fatal to that claim. The respondents did not assert prejudice. Cogent explanations had been given for the delay. The time requested was not long.

34 Nevertheless, Mr Romaniuk, of counsel, who represented Ms Salzke, did not, in the proceedings before this Court, argue that the Registrar so erred. He did make submissions based on the prejudice to Ms Salzke, the absence of prejudice to the respondents, Ms Salzke’s explanations for the delay and the other matters to which I have referred. But he did so in the context of arguing only that the Registrar erred in exercising her discretion under UCPR 31.36(3). He did not advance an argument based on the proposition that Ms Salzke, implicitly, was seeking an extension of time to file Professor Rawlinson’s supplementary report and that the Registrar erred in failing first to consider that issue. For that reason, I shall not decide these proceedings by reference to the matters I have identified under this heading.

UCPR 31.36 not engaged

35 There is a further significant matter that was not raised by counsel. This is the fact that the Registrar decided the motions before her on the basis that the reports filed by Ms Salzke did not meet the requirements of UCPR 31.36. But, that rule did not apply. As I have noted above, before issuing her statement of claim, Ms Salzke obtained an order from an assistant registrar of the District Court allowing her to file her statement of claim without complying with UCPR 31.36(1). Indeed, the Registrar, herself, on 25 July 2007 and 1 February 2008 (long after Ms Salzke had commenced proceedings) made orders requiring Ms Salzke to serve her expert reports by 26 October 2007 and 28 March 2008, respectively. She thereby accepted that there should be a departure from the terms of UCPR 31.36(1).

36 In reality, the respondents’ motions for dismissal should have been based on the failure by Ms Salzke to comply with the order of 21 April 2008 requiring her to serve all expert and medical evidence by 6 June 2008. The power to make such an order is conferred by s 61(3) of the Civil Procedure Act 2005.

37 The point is that the discretion of the Registrar to dismiss the action under s 61(3) of the Civil Procedure Act by reason of non-compliance with the order of 21 April 2008 is not the same discretion as that conferred on a judicial officer by UCPR 31.36(3).

38 I refer below to the purposes underlying UCPR 31.36. At this point, I note merely that one of those purposes (manifest from the express wording of the rule) is to encourage the early preparation of cases for hearing (as early as the commencement of proceedings). The rule recognises that, in some circumstances, that purpose cannot be achieved and justice requires a plaintiff to be given time to serve expert reports after proceedings have been commenced. This was such a case. The District Court had authorised commencement of proceedings without the need to comply with UCPR 31.36. Of course, delays in the preparation of the case would remain a highly relevant factor. But, the focus in exercising a discretion to dismiss a claim because of non-compliance with a court order differs from that to be exercised in dismissing a claim because of non-compliance with UCPR 31.36(1).

39 Again, as the point was not taken or argued, I shall not decide these proceedings by reference to the matters I have identified under this heading. The parties, and the Registrar, dealt with the respondents’ motions as if they were based on a non-compliance with UCPR 31.36(1) (when – as I have explained – they were not). Having regard to the way the case was argued, I shall adopt the same approach.

The Registrar’s reasons of 29 July 2008

40 The respondents relied on two bases for their dismissal motions. The first was want of prosecution and the second non-compliance with UCPR 31.36. The Registrar, in her reasons, discussed these without attempting to segregate the different arguments that applied to each separate basis. It is often not possible to determine whether she was applying criteria more appropriate to the one when considering the other.

41 For example, it is not clear whether statements she made that the matter was not ready for trial (which fact plainly influenced her decision) were made in regard to the want of prosecution argument or the non-compliance with UCPR 31.36 argument. The fact that the matter was not ready for trial would hardly be a factor in regard to the latter argument, as, in the light of the known history of the matter, even had Ms Salzke complied with the order to file all her expert reports by 6 June 2008, it would be difficult to envisage the matter being ready for trial at that stage.

42 In regard to the want of prosecution argument, the Registrar concluded:

“The plaintiff’s solicitors have progressed the matter since the last decision in April and I therefore would not dismiss the proceedings for want of prosecution”.

43 The Registrar dealt with the UCPR 31.36 argument on the basis that Ms Salzke’s medical reports were to be assessed by reference to the amended statement of claim that Ms Salzke had filed without leave. I have noted that on 21 April 2008 the Registrar had granted leave to Ms Salzke to file the amended statement of claim by 20 June 2008, but Ms Salzke had only filed it on 3 July 2008. No leave to file late was given. Nevertheless, the Registrar had regard to the amended statement of claim, not the original statement of claim that was the extant pleading. No party made any point of this.

44 The Registrar noted that, under the amended statement of claim, Ms Salzke’s claim against Dr Khoury was re-cast to allege only that her treatment with gentamicin was inappropriate and the particulars against the Health Service had been re-cast to allege two causes of action, firstly “that the hospital caused the infection by premature removal of a drain” and, secondly, “that the plaintiff was treated with gentamicin, in circumstances where it was not clinically indicated and where it was known to cause damage to hearing and balance”. The Registrar noted further that the plaintiff’s medical report before her comprised Dr Conrad’s reports of 20 December 2006 and 3 July 2008, the report of Ms Lyon of 6 June 2008, and Professor Rawlinson’s report of 8 June 2008.

45 The Registrar acknowledged that she had said in her earlier decision that Dr Conrad’s report of 20 December 2006 provided “a basis for a cause of action, especially against the hospital”. She said, however, that that report “was not sufficient to satisfy the rule”. She gave three reasons for this. Firstly, Dr Conrad’s account of Ms Salzke’s injuries was based on assumptions her solicitors had asked him to make. Secondly, she said that Dr Conrad’s reports were “inconsistent” with Professor Rawlinson’s report. Thirdly, she said that Professor Rawlinson should be regarded as having greater expertise in the treatment and diagnosis of infection.

46 The Registrar regarded Ms Lyon’s report as having no value as it was also based on assumptions she was requested to make by Ms Salzke’s solicitors and because of the limitations in her expertise.

47 The Registrar made a number of criticisms of Professor Rawlinson’s report. As regards the claim against Dr Khoury, the most relevant are:

(a) Professor Rawlinson did not examine the plaintiff and his report was based on his consideration of clinical notes.

(b) Professor Rawlinson did not “provide any criticism of Dr Khoury’s treatment”.

(c) Professor Rawlinson specifically linked treatment at Holbrook District Hospital (and not Albury Base Hospital) to the development of gentamicin toxicity and it was not pleaded that Dr Khoury was responsible for the treatment at that hospital.

(d) Professor Rawlinson did not “draw any final conclusion about any injury suffered and therefore [did not support a] causal relationship between the treatment and any injury suffered by Ms Salzke”.

48 The Registrar concluded that Professor Rawlinson’s report did not satisfy “sub-paragraphs (b) and (c) of rule 31.36(1) in relation to Dr Khoury”. She said it “only tangentially makes comments which could represent an opinion in respect of breach of duty on a temporal basis.”

49 As regards the claim against the Health Service, the most relevant criticisms are:

(a) “Professor Rawlinson does not distinguish in the body of the report between the doctor and the hospital in his comments about gentamicin toxicity.”

(b) “Importantly in the executive summary, he states that any disabilities arise from prolonged treatment of gentamicin at Holbrook Hospital,” and all references to the hospital treatment in the statement of claim were to Albury Base Hospital.

(c) “The second defendant may administer Holbrook Hospital but no case against that hospital is pleaded in the statement of claim. Therefore UCPR 31.36(1)(a)(b) and (c) are not satisfied regarding any treatment at Albury Base Hospital for the prescription of gentamicin.”

(d) In regard to the case on the accidental removal of the drain, the Registrar said:


“On the aspect of causation, Professor Rawlinson says no more than that the early removal may have contributed to the development of the infection. He does not say how.

The report has the same defects with respect to rule 31.36(1)(b) and (c) regarding gentamicin prescription and, as I said, does not implicate any treatment at Albury Hospital”.

50 The Registrar made the following further general criticisms of Professor Rawlinson’s report:

(a) His report did not deal with the general nature and extent of the damage alleged to have been suffered by Ms Salzke as UCPR 31.36(3) required.

(b) UCPR 31.36(3) requires, in dealing with causation, “an opinion regarding the detailed symptoms that the plaintiff complains of” (and Professor Rawlinson’s report did not express such an opinion).

(c) The report provided little assistance with respect to causation “because the comments made are not specific to the plaintiff”.

51 The Registrar concluded:

“[T]he order made on the last occasion was that the plaintiff be given an extension of time to comply with rule 31.36. The evidence served does not satisfy the rule. The plaintiff was given a clear warning regarding the consequences of non-compliance.”


She then dismissed Ms Salzke’s claim.

UCPR r 31.36

52 UCPR 31.36 provides:

“ 31.36 Service of experts’ reports in professional negligence claims

(cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.

(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.

(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:

(a) has been filed and served under subrule (1) or (2), or

(b) has been served pursuant to directions given under subrule (4).”

53 UCPR 31.36 is the procedural basis of the professional negligence list. That list was established in April 1999 and its establishment coincided with the introduction of Pt 14C in the Supreme Court Rules by the Supreme Court Rules (Amendment No. 325) 1998. The Explanatory Note to that amendment states:

“In proceedings in the list, copies of expert reports must be served on all parties by the person making the professional negligence claim at an early stage in the proceedings. This requirement is designed to eliminate delay and expense in assessing the claim.”

54 Part 14C contained provisions that were similar, albeit not the same, as UCPR 31.36. Part 14C empowered the court, on application by a party or of its own motion, to order entry into the professional negligence list of proceedings in which a professional negligence claim was instituted. Part 14C rule 6(1) was, in turn, similar to UCPR 31.36(1).

55 The relevant rule in the District Court Rules was Pt 28, r 9B which, in substance, was the same as UCPR 31.36. Part 28 r 9B was inserted in the District Court Rules by the District Court Rule (Professional Negligence Claims) 1999. The Explanatory Note to that rule stated:

“The object of this rule is to amend part 28 of the District Court Rules 1973 to provide for the early service of expert reports on all parties to any proceedings for damages for professional negligence by a person making the professional negligence claim.”

56 In a paper written by Abadee J, prior to the establishment of the professional negligence list, entitled “Commentary: the Professional Negligence List in the Common Law Division of the Supreme Court”, his Honour stated:

“The List is aimed at reducing the cost and delay associated with the bringing or prosecuting of certain classes of professional negligence actions involving the medical profession (and allied health professions) and legal professions (both solicitors and barristers) and producing better management of such cases. The special Professional Negligence List judge will take steps to assist in bringing the action to early resolution or by trial. A further aim will be to create an atmosphere conducive to early resolution of disputes by the parties. It is hoped that the new list will weed out hopeless cases, confine parties to real issues and control expense and will assist in resolution of cases by agreement, discussion, negotiation and mediation. Special rules relating to experts, their expected roles have been introduced. The List is designed not only to reduce delay and expense but also to ensure proceedings are fully prepared for hearing. It is intended, and expected that the strengths and weaknesses of the parties’ respective cases will be revealed earlier by the implementation of the Rules and Practice Note.

… ”

57 His Honour said further:

“It was also considered that the service of such reports would assist in the prompt addressing of issues raised in the proceedings, assist in encouraging early resolution of actions whether on liability or damages, assist in raising estimates by the parties and even provide a basis for early mediation. Again it was felt that the rule will facilitate the reduction of delay and in the assessing of a merits claim. Finally, the rule will also address the matter of precipitate commencement of proceedings and the matter of whether proceedings that should have been commenced at all. What should not be overlooked is that service of the report(s) would also provide some prima facie support for an action brought and also assist in showing it is a bona fide one.

58 There is nothing in UCPR 31.36 that suggests that his Honour’s comments that I have quoted are not equally applicable to it.

59 UCPR 31.36 is basically a rule that serves case management purposes and is designed to assist in achieving the overriding purpose of s 56(1) of the Civil Procedure Act 2005, namely, “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” (see also ss 57, 58 and 59).

60 UCPR 31.36(1) requires a plaintiff in a professional negligence action to disclose, when the statement of claim is filed, the expert opinion on which the claim is based. The rule, however, is not inflexible. UCPR 31.36(1) expressly provides that the court may order “otherwise”. UCPR 31.36(4), (5) and (6) contemplate that orders may be made after the claim has been commenced relating to expert evidence not filed and served at the time the claim was commenced.

61 Other aspects of the rule are to be noted. Firstly, the rule cannot be construed to mean that an individual expert’s report must include an opinion supporting all the matters referred to in sub-rule 1(a), (b) and (c). Those matters would usually involve fundamentally different categories of expertise. The rule could not be intended to preclude the case of an expert’s report relevant only to one or two of those matters. Accordingly, the fact that opinions in an expert’s report support only one or even part of one of the matters in paragraphs (a), (b) and (c) does not detract from the use that may be made of that report to support a plaintiff’s claim for the purposes of UCPR 31.36(1). The opinions expressed in an expert’s report as to any one or part of the elements of breach of duty of care, or damages or causation, may assist in providing the support contemplated by the rule. The opinions may only support a single link in the chain that constitutes the plaintiff’s case. Opinions of that kind are nevertheless relevant in determining whether there has been compliance with UCPR 31.36(1).

62 Secondly, the opinions in the expert’s report merely have to “support” one or more of the matters referred to in sub-rule 1(a), (b) or (c). The opinions do not have to “prove” anything. A report, at the stage that it is considered for the purposes of UCPR 31.36, is not evidence.

63 Thirdly, due regard must be had to the fact that UCPR 31 (the rule dealing with expert evidence) contemplates that experts will prepare their own reports (see, for example, UCPR 31.23(3) and clause 5(2) of the Expert Witness Code of Conduct (schedule 7 to the UCPR). This is consistent with the principle that expert evidence presented to the court should be the independent product of the expert: National JusticeCompania Naviera SA v Prudential Assurance Company Limited (the “Ikarian Reefer”) [1993] 2 Lloyds Rep 68. Thus, the report should be construed benevolently and not as if it were a pleading or an affidavit or even a statement of a witness prepared by a lawyer.

64 Fourthly, the power under UCPR 31.36(3) to dismiss the whole or any part of the proceedings is based on non-compliance with sub-rule (1). The court, in dealing with an application under UCPR 31.36(3), is not concerned with an application for dismissal of the proceedings for want of prosecution or an application for summary judgment by the defendant.

The Registrar’s approach to the motions for dismissal

65 In my view, the Registrar’s reasons reveal a number of errors in principle in dealing with the motions for dismissal.

66 The Registrar frequently referred to the reports as “evidence”. She appears to have adopted the approach that the expert’s reports that are filed with a statement of claim under UCPR 31.36(1) must contain opinions that (were they to be regarded as evidence) would establish a prima facie case against the defendants.

67 Additionally, some of the Registrar’s remarks are capable of being construed as meaning that each report so filed must, independently and on its own, be capable of establishing all of the elements in paragraphs (a), (b) and (c) of sub-rule (1).

68 The Registrar also appears to have accepted that a report is not capable of supporting a plaintiff’s claim if it expresses opinions that are general, or abstract, in nature and which are not expressed in terms that show how those general or abstract opinions apply to the parties. This approach underlies her comments that:

(a) Professor Rawlinson did not provide any criticism of Dr Khoury’s treatment.

(b) Professor Rawlinson did not draw any final conclusion about any injury suffered and therefore did not support a causal relationship between the treatment and any injury suffered by Ms Salzke.

(c) The report provided little assistance with respect to causation because the comments made were not specific to the plaintiff.

(d) Professor Rawlinson did not distinguish between Dr Khoury and “the hospital” in his comments about gentamicin toxicity.

(e) Professor Rawlinson, on the aspect of causation, said no more than that the early removal may have contributed to the development of the infection.

(f) Professor Rawlinson’s report did not deal with the general nature and extent of the damage alleged to have been suffered by Ms Salzke as UCPR 31.36(3) required.

(g) UCPR 31.36(3) requires an opinion regarding the detailed symptoms of which the plaintiff complains.

(h) Dr Conrad’s first report was of no assistance in “remedying the gaps in the plaintiff’s evidence with respect to UCPR 31.36(1)(b) and (c) against either defendant”.

(i) Dr Conrad’s report, in effect, should be discounted as it was inconsistent with Professor Rawlinson’s report and Professor Rawlinson had greater expertise.

69 In my opinion, the approach of the Registrar that I have described in the previous three paragraphs is wrong in principle. I have previously explained that the reports are not evidence and they do not, singly or together, have to establish a prima facie case against the defendants. The rule only requires that the experts’ reports include opinions that “support” the matters referred to in sub-paragraphs (a), (b) and (c) of sub-rule 1.

70 It would be entirely open to a plaintiff to lead other evidence, not of an expert nature, which supplements the material contained in the reports filed under r 31.36(1) in such a way as to prove his or her case. This must be borne in mind when considering compliance with UCPR 31.36(3). Thus, evidence by eyewitnesses may supplement expert opinion to establish breach of duty of care. The plaintiff may adduce circumstantial evidence that may, alone, or in combination with expert evidence, establish causation in a specific case. The fact that experts do not infer causation on a balance of probabilities does not mean that a court may not: Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [143]-[144] per Spigelman CJ. A plaintiff may rely on his or her own evidence to prove damage or to supplement evidence given by experts. Accordingly, a plaintiff may well comply with rule 31.36(1) even though the opinions expressed in the reports filed do not deal with each and every element of the plaintiff’s case.

71 The fact that Professor Rawlinson did not distinguish in his report between Dr Khoury and the Health Service is irrelevant. Part of Professor Rawlinson’s report was directed to relevant standards, conduct that might constitute breaches of those standards, and what consequences might flow from those breaches. To that extent, his report supported Ms Salzke’s case. Other evidence, not of an expert nature, could be adduced to establish if and how Professor Rawlinson’s opinions apply to Dr Khoury and the Health Service.

72 For the same reasons, the fact that Professor Rawlinson’s opinions as to causation are not specific to Ms Salzke is irrelevant. Other evidence, not of an expert nature, may establish how those opinions are relevant to the link between breach of duty and the damages that Ms Salzke suffered.

73 In any event, the opinion expressed by Professor Rawlinson that it is more likely than not that Ms Salzke’s dizziness and trouble balancing resulted from prolonged treatment with gentamicin, provides “support” within the meaning of UCPR 31.36(1) in the sense I have explained. The same applies to Professor Rawlinson’s opinion that “gentamicin may have caused unsteadiness in Ms Salzke”. There are other statements by Professor Rawlinson that are to similar effect.

74 UCPR 31.36(3) does not require an opinion regarding the detailed symptoms of which Ms Salzke complained.

75 With regard to the removal of the drain (and the case against the Health Service on this issue), Dr Conrad, in his first report, said:

“On the balance of probabilities, in that the early removal of the drain probably substantially contributed to the development of a local haematoma, in my opinion the accidental early removal of the drain would have been a substantial contributing factor to the infection and on the balance of probabilities, increased the chances of infection developing.”

76 This opinion provided clear support to the element of causation in Ms Salzke’s case based on the accidental removal of the drain.

77 With regard to the case based on the administration of gentamicin, Dr Conrad explained in his second report that the treating orthopaedic surgeon is always involved and participates in decision making as to what procedure and treatment needs to be implemented for infection control once infection has been diagnosed. Further, Dr Conrad said that an orthopaedic surgeon in 2003 “would certainly be aware of the dangers of gentamicin in relation to hearing and balance”. These opinions tended to establish that Dr Khoury, as treating doctor, would have responsibility for management of Ms Salzke’s infection both at Albury Base Hospital and at Holbrook District Hospital and would have known of the dangers of prescribing gentamicin in the dosage that was prescribed. To this extent these opinions supported Ms Salzke’s case, both in relation to breach of duty against Dr Khoury, and to vicarious liability against the Health Service.

78 The Registrar’s observations that Dr Conrad’s reports did not include opinions supporting the matters referred to in sub-paragraphs (a), (b) and (c) of UCPR 31.36(1) were based on her opinion that those reports were inconsistent with Professor Rawlinson’s report and Professor Rawlinson should be regarded as having greater expertise than Dr Conrad. Matters of inconsistency between experts and relative expertise, however, are not matters to be taken into account when determining compliance with UCPR 31.36(1). The Registrar was not entitled so to discount Dr Conrad’s opinions.

79 The Registrar considered that Professor Rawlinson’s report did not support Ms Salzke’s case involving inappropriate prescription and administration of gentamicin because the excessive dosages of gentamicin occurred at Holbrook District Hospital, and Ms Salzke did not plead a case based on prescription and administration of gentamicin at that hospital.

80 Ms Salzke’s original statement of claim set out the particulars of negligence against Dr Khoury and the Health Service. Particular (d) of the particulars of negligence alleged against Dr Khoury was his asserted “failure to properly or adequately treat the plaintiff’s hip infection or possibility of hip infection post operatively”. The particulars of negligence against the Health Service alleged that Ms Salzke was relying on “a non-delegable duty of care and vicarious liability in respect of the following particulars”. Particular (f) was in the same terms as particular (d) alleged against Dr Khoury. These particulars are broad enough to encompass the administration of gentamicin at Holbrook District Hospital. It is not in dispute, as the Registrar, in effect, observed, that Dr Khoury was in charge of the management of Ms Salkze’s infection while she was at Holbrook District Hospital.

81 I accept that, for an opinion in an expert’s report to support a matter referred to in sub-paragraphs (a), (b) and (c) of UCPR 31.36(1), that opinion must fall within the case made out in the statement of claim. I accept that no mention is made expressly of Holbrook District Hospital in the statement of claim. I also accept that there is vagueness in the statement of claim by reason of the failure of the particulars of negligence to address issues of time and place. Nevertheless, in my opinion, those particulars are broad enough to encompass conduct at any hospital where Dr Khoury administered gentamicin to Ms Salzke. They are also sufficiently broad to encompass any such conduct by Dr Khoury for which the Health Service was vicariously liable.

82 Vagueness in the statement of claim is not a reason to hold that expert reports that are capable of falling within the particulars of negligence pleaded should be held not to comply with UCPR 31.36(1). There are other remedies available to a defendant should it wish to contend that it is embarrassed at the vagueness of the pleading.

83 Thus, in my view, the Registrar was incorrect when she held that the opinions expressed by Professor Rawlinson in relation to conduct at Holbrook District Hospital did not support Ms Salzke’s case.

84 The same issue arises in the amended statement of claim. As I have explained, the Registrar dealt with the matter on the assumption that the amended statement of claim applied. Paragraph 30.1 of the amended statement of claim contains several allegations of negligence against Dr Khoury dealing with the use of gentamicin. Paragraph 30.2 of the amended statement of claim alleges that the Health Service, “by its servants and/or agents caused the infection in respects that are pleaded”. One of the respects pleaded concerns the administration of gentamicin.

85 As the Registrar pointed out, the amended statement of claim refers to treatment by Dr Khoury up to July 2004 but not subsequently. It does not follow, however, that the particulars pleaded in paragraph 30 of the amended statement of claim are not broad enough to cover treatment by Dr Khoury administered at Holbrook District Hospital. Again there is an issue of vagueness in the statement of claim, but for the reasons I have already given, that vagueness does not mean that an expert report that is otherwise capable of falling within the particulars of negligence pleaded should be held not to comply with UCPR 31.36(1).

86 I should add that, in any event, Professor Rawlinson expressed opinions in his report that are capable of supporting a case of breach of duty of care in relation to the administration of gentamicin at Albury Base Hospital on the part of Dr Khoury (for which the Health Service would be vicariously liable).

87 Mr Downing of counsel, who represented the Health Service submitted that the experts’ reports did not include opinions supporting the general nature and extent of damage alleged. This submission was based on the fact that the injuries and disabilities recounted by Dr Conrad and Professor Rawlinson, in their reports, were merely restatements of what these two experts were asked to assume by Ms Salzke’s solicitor.

88 According to the original statement of claim Ms Salzke suffered the following injuries:

(a) The development of golden staph infection in the right hip.

(b) Side effects from gentamicin treatment, including problems with balance, kidney problems and damage to eyesight.


(c) Shock, anxiety and sequelae.

(d) Requirement for further surgeries.

89 Particulars of disabilities pleaded include chronic pain, discomfort and restriction of movement of the right hip, chronic infection of the right hip, dizziness, problems with balance, difficulty walking, blurred vision, anxiety and depression.

90 The amended statement of particulars is more or less the same but adds an injury to Ms Salzke’s right shoulder and the consequential disabilities.

91 In substance, Ms Lyon’s report records the injuries and disabilities pleaded in both the statement of claim and the amended statement of claim, including the shoulder injury.

92 Ms Salzke could testify as to most of these injuries and disabilities herself. In particular, she could give evidence as to the infection from which she suffered, her problems with balance, with her eyesight, her anxiety and depression, her need for further surgery, chronic pain, discomfort and restriction of movement of the right hip, dizziness, problems of balance, difficulty walking, blurred vision, problems with her shoulder and anxiety and depression.

93 Assuming that Mr Downing’s submission is nevertheless correct, I do not regard this aspect of non-compliance as material. The experts’ reports that were filed made it quite plain what Ms Salzke was alleging in regard to the injuries that she asserted were caused by the respondents’ negligence. The reports fully apprised the respondents of the case Ms Salzke sought to bring against them. Mr Downing suggested that there were issues of pre-existing injuries, but those issues would be for the respondents to raise. That is not to say that Ms Salzke’s expert reports should not make a full disclosure of the existing injuries. She might, indeed, suffer a forensic penalty were she not to disclose them. But, strictly speaking, I do not see how a failure to refer to pre-existing injuries would result in expert reports not complying with the rule. In any event, it appears from the material before the Court, that there is no secret about Ms Salzke’s pre-existing injuries.

94 A principal purpose of UCPR 31.36 is to ensure that the case gets to trial with both parties fairly apprised of the nature of each other’s case at the earliest reasonable opportunity. A practical approach should be taken. I do not intend to convey the impression that the failure by Ms Salzke to provide medical reports dealing with the nature of her injuries was trivial. But, practically speaking, I do not think that the omission to provide those reports at the stage the Registrar was dealing with the matter caused the respondents any prejudice. I would add that, in dismissing Ms Salzke’s action, the Registrar failed to use her powers in a “proportional” way and did not bear in mind that the dismissal of an action is “an extreme measure to be taken as a last resort”: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [46] per Allsop P and [52] per Young JA.

95 In summary therefore, I consider that the reports before the Registrar supported Ms Salzke’s case as to breach of duty and causation. To the extent that Ms Salzke did not comply with UCPR 31.36(1) in regard to the damages she suffered, I do not think that that non-compliance was material. In my opinion, the Registrar erred in the respects set out above and in holding to the contrary.

96 Before concluding this aspect of my reasons, I should refer to a submission by Mr Dowling that the approach adopted in Micallef v ICI Operations Pty Ltd [2001] NSWCA 274 was applicable. That case, however, is distinguishable in many respects, not least being the fact that the appellants in that case did not demonstrate any error in approach on the part of the primary judge. Here Ms Salzke has demonstrated significant errors.

97 In Erhard v Bhatia [2002] NSWCA 388 Heydon JA (with whom Sheller JA and Campbell J agreed at [57]-[59]) discussed the differences between Micallef and the circumstances in that case. His Honour said:

"The general circumstances of the two cases are very different. In Micallef's case, there had been very lengthy delays; there had been a total lack of diligence on the part of the plaintiff or her advisers; an order to supply particulars had been contravened three times; an arbitration date had been fixed and vacated; when the particulars were supplied, they substantially widened the case; and there was actual prejudice to the defendants. Here the delays are much less; the plaintiff and her advisers have been, if not wholly diligent, at least much more diligent; there were explanations for why the orders were contravened; no hearing date has been vacated; the particulars supplied were within the pleaded case; and there was no actual prejudice to the defendant. More fundamentally, while in Micallef's case, in view of the prejudice to the defendants, the demands of justice between the parties supported the dismissal order and the refusal to set it aside, in this case the demands of justice between the parties favour the setting aside of the dismissal order in view of the injury it causes to the plaintiff and in view of the want of prejudice to the defendant which would flow from setting it aside.”

98 The circumstances in the present case are akin to those in Erhard v Bhatia.

99 Mr Romaniuk submitted that the Registrar had failed to take into account the grave consequences to Ms Salzke in dismissing her action. Those consequences are particularly grave because of the fact that it is to be taken that any new action commenced by her now would be statute barred. This is a matter that had been pressed on the Registrar during the course of argument. The Registrar referred to the limitation period in the course of her judgment but made no explicit mention of the prejudice to Ms Salzke in the course of her reasons.

100 In my view, the Registrar’s omission to refer expressly to the prejudice Ms Salzke would suffer were her actions to be dismissed is significant. The factor is of such weight and so important in weighing the justice of the case that an omission to refer to it and to explain why the action should be dismissed compels the inference that the Registrar did not have proper regard to it. This omission is a further material error indiscretion.

The consequence of the errors in discretion and the further conduct of the case

101 In my opinion, the errors that the Registrar made resulted in a miscarriage of justice. It is open to this Court to re-exercise discretion under the rule. The issue is simply whether, based on Ms Salzke’s failure to comply with UCPR 31.36(1) in regard to the damages she suffered, her actions should be dismissed.

102 I have expressed the opinion that that failure was not material. There will be no prejudice to the respondents if the motions for dismissal are dismissed and if Ms Salzke is given a further opportunity to supplement the report of Professor Rawlinson that was before the Registrar. In my opinion, the motions for dismissal should be dismissed with costs.

103 Ms Salzke did not appeal against the order dismissing her application for leave to file her amended statement of claim. That matter is not before this court. There is no issue before this Court that would entitle it to grant Ms Salzke an extension of time to file additional reports, but that no doubt is a matter that can be dealt with when the matter is returned to the District Court.

104 The result of this appeal and the way in which the matter has been managed generally leaves it in an unsatisfactory state. The original statement of claim remains as the initiating process even though Ms Salzke, apparently, wishes to proceed by way of the amended statement of claim. She has not obtained leave to amend her statement of claim. She wishes to file additional medical reports and that needs leave. Overall, the case needs careful management, both by the Court and by the parties’ legal representatives.

105 The claim is potentially a large one and the factual issues are complex. Ordinarily I would have given serious consideration to transferring the case to this Court under s 140 of the Civil Procedure Act. However, it seems that Ms Salzke attempted to have this done and then withdrew her application. That being so, I think it preferable not to take this aspect any further.

Motion to adduce further evidence

106 Ms Salzke sought to adduce new evidence at the hearing of this application. Her application in this regard was heard concurrently with her applications for leave to appeal. The evidence in question included two further reports from Professor Rawlinson and two other medical reports.

107 The additional reports by Professor Rawlinson supplement and clarify his first report that was before the Registrar. It is sufficient to say that, save as regards sub-paragraph (b) of UCPR 31.36(1) (which is not addressed by the reports), the opinions expressed in Professor Rawlinson’s supplementary reports unequivocally support Ms Salzke’s case in relation to the administration of gentomicin.

108 An order for summary dismissal is interlocutory: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (per Handley and Cripps JJA). The test for allowing further evidence in appeals from interlocutory orders, especially in matters of practice and procedure, is more liberal than that applicable to the admission of further evidence after a trial or hearing on the merits: Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 (see in particular at [155] per Heydon JA).

109 The additional reports by Professor Rawlinson essentially clear up any misunderstanding that may arise from a construction of his first report that was before the Registrar. It is highly undesirable that a decision based on an inadequate report prepared by an expert should stand when the expert, long before trial, asserts by a further report that he has been misunderstood or that on the receipt of further material he has been able to clarify, expand or modify his opinion. In such a case, in my view, justice would demand the admission of that evidence. The present is such a case.

110 Had I not been of the opinion that the applications for leave to appeal should be granted and the appeals upheld on the grounds I have stated, I would have held that those orders should be made by reason of the further evidence of Professor Rawlinson. In other words, I would have upheld the motion to admit the evidence so far as those reports of Professor Rawlinson are concerned.

111 In the light of the orders that I propose, however, it is not necessary to deal with the motion to adduce further evidence

Orders proposed

112 I propose the following orders:

(a) The applications for leave to appeal are granted.

(b) The appeals are upheld with costs.

(c) The orders made by the Registrar on 29 July 2008 are set aside.

(d) The respondents’ motions to dismiss Ms Salzke’s claim are set aside with costs.

(e) Dr Khoury to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

113 BASTEN JA

: I agree with the orders proposed by Ipp JA, and with his Honour’s reasons. Some further comments are apposite in relation to the underlying purpose of Uniform Civil Procedure Rules (NSW), r 31.36 and hence the considerations which should inform its application.

114 These matters are of importance because, as applied by the Judicial Registrar in the present case, the rule has operated to cause dismissal of a claim which was brought within the limitation period, which was not a hopeless or patently unmeritorious case and which did not warrant dismissal for want of prosecution.

115 A rule which has operation in a specific class of cases must be applied with careful attention to its underlying purpose. It has the potential to operate differentially so as to raise a hurdle in the path of those with legitimate claims against health professionals, thus providing a degree of protection against such claims which other groups in the community do not enjoy. Such differential treatment, which may impede access to the courts for injured persons, should have a clear and rational justification. In Pell v Hodges [2007] NSWCA 234, in discussing the justification for an extension of time for service after the expiration of a limitation period in a professional negligence suit, Handley AJA stated at [45]:

“Proceedings for professional negligence differ from the general run of personal injury cases as they affect the defendant personally and his or her professional reputation. One may reasonably infer that considerations such as this prompted the reduction in the time for service of the statement of claim for cases in the Professional Negligence List and the warnings in the Practice Direction.”

116 Without doubting the accuracy of that inference, its scope must be treated with caution. Rule 31.36 applies only to health professionals, whereas adverse effects of negligence claims on professional reputation are likely to affect any person whose livelihood depends upon the exercise of particular skills and expertise. Nor will the courts readily adapt fundamental principles to protect professional reputations, where such protection would not otherwise be provided to members of the community: see, eg, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 59-60 (Kirby P), 61 (Samuels JA) and 63 (Priestley JA). In the present case, the rule was applied in relation to a claim against a body responsible for the operation of a public hospital pursuant to the Health Services Act 1997 (NSW). A concern for personal reputation could not apply with respect to such a statutory corporation.

117 The differential treatment of medical negligence claims by r 31.36 is better justified on other bases. The desirability of singling out such claims for differential treatment was explained by Lord Woolf in his final report on the civil justice system in England and Wales, Access to Justice (July 1996), Ch 15. He answered the question as to why such cases were selected for special attention in the following terms at p 170:

“2. The answer is that early in the Inquiry it became increasingly obvious that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants in a number of respects.
(a) The disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases.
(b) The delay in resolving claims is more often unacceptable.
(c) Unmeritorious cases are often pursued, and clear-cut claims defended, for too long.
(d) The success rate is lower than in other personal injury litigation.
(e) The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation.”

118 It seems likely that similar criticisms could be justified in this jurisdiction and underlay the establishment of the Professional Negligence List in early 1999 and Practice Note 104 promulgated on 23 December 1998 in relation to that list. On the day following the practice note, a new Pt 14C was inserted in the Supreme Court Rules 1970, which included the precursor to UCPR 31.36, namely r 14C.6.

119 Lord Woolf made the following further comments in relation to expert evidence in medical negligence claims at p 186-187:

“63. Medical negligence differs from other personal injury litigation in the parties’ greater reliance on expert medical evidence for issues of causation and liability as well as quantum. Causation is more difficult to establish than in other personal injury cases. This is because the effects of the allegedly negligent treatment must be distinguished from those of the patient’s underlying condition which gave rise to the need for treatment. Liability is often very difficult to establish. …
65. For the resolution of all three issues – causation, liability and quantum of damages – the parties and the courts are dependent on medical and other expert evidence. This is not only expensive, especially if experts from several specialities are used by each side, but may also be a source of delay because of the time taken by the experts to produce their reports. Generally speaking, expert witnesses in the medical field have less time to spare for legal work than experts in other fields.
66. All practitioners in this field know the peculiar difficulty of finding the information necessary to determine whether a potential claimant has a case. This is not simply a matter of establishing the facts, although that in itself is often difficult enough, but of finding an expert medical opinion to support the claim.”

120 Lord Woolf also noted the problem for potential claimants in obtaining access to medical records and information. He described the effect of such problems as “difficult to exaggerate”: p 188, par 68. In relation to the quantification of medical negligence claims, his Lordship noted at p 191:

“79. First, to avoid waste of resources, it is important to ensure that detailed quantification work is done at the most appropriate stage of the case. Defendants want claimants to value cases at an early stage, because it encourages early settlement or at least enables the defendant to estimate his liability. But in complex cases where prognosis and needs are unclear, this is too expensive and leads to repetition. Early quantification can also be wasteful of resources where there is a real dispute on liability; in such cases, consideration should be given to deferring quantum evidence until the issue of liability has been dealt with.”

121 The important factor to be derived from Lord Woolf’s Inquiry, at least to the extent that it is mirrored by experience in this State, is that the problems afflicting the resolution of medical negligence cases are multifarious and operate differentially between the parties. It is inappropriate to treat r 31.36 as intending to provide a panacea in relation to each such problem. One important consideration which underlay the introduction of its predecessor (Pt 14C of the Supreme Court Rules) is that it was designed to operate with respect to a specialist list, the very purpose of which was to take such cases out of the general jurisdiction of the Common Law Division. To the extent that such matters are dealt with by the Judicial Registrar in the District Court, the rule has been divorced from its original place within a raft of reforms promoting active specialist case management.

122 While r 31.36 may have multiple purposes, particularly when understood in a broader context, its primary purpose appears to be to discourage the commencement of unmeritorious litigation. In that sense it supplements other rules which have a similar purpose, including the requirement that a civil claim for damages cannot be commenced (or defended) by legal practitioners without certifying that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim (or the defence) has reasonable prospects of success: Legal Profession Act 2004 (NSW), s 347(2). Rule 31.36, by contrast, is one-sided: it does not require a health professional to file expert evidence supporting the defence case.

123 This understanding of the rule does not support a view that the filing and serving of expert reports supporting the claims with respect to breach of duty of care, the general nature and extent of damage, and the causal relationship between breach and damage, is a mere formality. However, questions of compliance must take into account, for example, the consideration noted by Lord Woolf that early expenditure on the quantification of damage may well be unjustifiable. Similarly, they should take into account the acknowledged difficulties and delays likely to be faced by a plaintiff seeking to obtain such reports. Accordingly, the relevant opinions should not be scrutinised too finely in an attempt to demonstrate that they do not satisfy the rule. A rule designed to diminish the number of cases being commenced which have no reasonable prospects of success should not be turned into an unreasonable hurdle to be surmounted by plaintiffs with legitimate claims. Nor should such a rule provide a further procedural opportunity for defendants (through their insurers) to delay resolution of legitimate claims on the merits, or increase the costs faced by an indigent plaintiff with a legitimate claim. The courts must be astute to ensure that procedural reforms serve their intended purpose and do not become a vehicle for subversion of a purpose they were designed to promote.

: I agree with Ipp JA.

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21/04/2010 - Typographical error in r 31.36 - Paragraph(s) 117