Sandra Battersby v Allan; Darrel Battersby v Allan

[2017] NSWSC 1724

Supreme Court

New South Wales

Medium Neutral Citation:

Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724

Hearing dates:

23 October 2017; 29 November 2017

Date of orders:

15 December 2017

Decision date:

15 December 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   Proceedings 2015/00283601 and 2015/00283267 are to be heard together.

 

(2) The notice of motion and supporting affidavits of Leonie Ruth Beyers filed in proceedings 2015/00283610 are also read in proceedings 2015/00283267.

 

(3) Leave is granted to the plaintiffs to tender the report of Dr Webster pursuant to r. 31.28(3) and (4) of the uniform Civil Procedure Rules 2005 (NSW).

 

(4) The defendant’s notice of motion is otherwise dismissed.

 

(5)   Costs of the motion are reserved.

 

(6)   Absent agreement, the parties are to provide written submissions as to costs by 5:00pm on Wednesday 31 January 2018, such submissions not to exceed two pages in length in each case.

 (7)   The proceedings are listed for further directions before me on Friday 2 February 2018 at 9:30am.

Catchwords:

EVIDENCE – Expert evidence – Proceedings alleging negligence by a Neurosurgeon – Where plaintiff sought to rely upon the evidence of a Neurologist – Whether Neurologist had the requisite specialised knowledge based upon training study and experience to express an opinion regarding surgery – Opinion admissible

 

PRACTICE AND PROCEDURE – Rules governing the admissibility of expert reports – Whether the Court should dispense with the operation of those rules in the exercise of its discretion

  PRACTICE AND PROCEDURE – Service of expert medical report outside the terms of orders made by the Court – Failure on the part of solicitor to have proper regard to those orders – Where exclusion of the report would leave the plaintiffs in a position where they had no expert evidence from a Neurosurgeon – Where no demonstrated prejudice to the plaintiff if the report were admitted – Where the hearing would not be delayed if the report were admitted – Exceptional circumstances made out – Leave granted to admit the report

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Capar v SPG Investments Pty Limited trading as Lidcombe Power Centre (No. 1) [2017] NSWSC 1371
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Honeysett v R (2014) 253 CLR 122; [2014] HCA 29
Repco Corp Limited v Scardamaglia [1996] 1 VR 7
R v Anderson (2000) 1 VR 1; [2000] VSCA 16
R v Farquharson (2009) 26 VR 410; [2009] VSCA 307
Simms v Western Sydney Area Health Service [2003] NSWSC 445
Yacoub v Pilkington Limited [2007] NSWCA 290

Texts Cited:

Macquarie Dictionary (7th Edition)
Blakiston’s Gould Medical Dictionary (2nd Edition)

Category:

Procedural and other rulings

Parties:

Sandra Battersby – Plaintiff
Darrel Battersby – Plaintiff
Rodney Allan - Defendant

Representation:

Counsel:
P Bates – Plaintiffs
K Burke - Defendant

  Solicitors:
Gerard Malouf & Partners – Plaintiffs
HWL Ebsworth – Defendant

File Number(s):

2015/283601

Publication restriction:

Nil

Judgment

INTRODUCTION

1. Before the court is a notice of motion filed by the defendant in proceedings 2015/283601 brought by Sandra Battersby, seeking orders that:

1. proceedings 2015/00283601 and 2015/00283627 be heard together.

2. the notice of motion and supporting affidavit of Leonie Ruth Beyers filed in proceedings 2015/00283601 also be read in proceedings 2015/00283627.

3. the report of Dr Dan Milder, served by the plaintiff’s solicitor on or about 19 February 2015 is inadmissible in either proceedings.

4. the report of Dr Jefferson Webster, served by the plaintiff’s solicitor on or about 13 July 2017 is inadmissible in either proceedings.

5. Dr Milder not be included in, or permitted to participate in, any conclave of experts in either proceedings.

6. Dr Webster not be included in, or permitted to participate in, any conclave of experts in either proceedings.

7. the plaintiffs pay the defendant’s costs of, and incidental to, the notice of motion.

2. In light of the order sought in (2), the hearing of the motion has proceeded on the basis that it was filed both in the proceedings brought by Mrs Battersby as well as in the proceedings brought by her husband, Darrel Battersby, being proceedings 2015/00283627.

3. No substantive issue is raised in respect of the orders sought in (1) and (2) and in my view, they are appropriate. Beyond that, the orders sought in the motion are opposed by the plaintiffs.

THE EVIDENCE

4. A court book containing the entirety of the evidentiary material was admitted without objection (Exh. C). It included material which had been the subject of separate tenders, including:

1. the advanced training curriculum for neurology issued by the Royal Australasian College of Physicians (“the Curriculum”) (Exh. A); and

2. the letter of instructions provided by the plaintiffs’ solicitor to Dr Milder, Neurologist (Exh. B).

5. Exhibit C included the following affidavits which were read by the defendant without objection:

1. Leonie Beyers dated 12 October 2017; and

2. Leonie Beyers dated 21 November 2017.

6. Exhibit C also included the following affidavits which were read by the plaintiffs without objection:

1. Leslie Abboud dated 20 October 2017;

2. Leslie Abboud dated 20 October 2017;

3. Leslie Abboud dated 15 November 2017; and

4. Leslie Abboud dated 17 November 2017.

7. A further affidavit of Mr Abboud dated 1 December 2017 was filed after judgment was reserved, with the consent of the defendants. Neither Ms Beyers nor Mr Abboud were cross-examined on the contents of their respective affidavits.

8. In addition, the defendant also tendered a copy of a subpoena issued to Dr Milder (Exh. D) seeking production of:

1. a copy of Dr Milder’s Curriculum Vitae; and

2. documentary confirmation that he had completed the Neurology Advanced Training Curriculum, or any other training or experience in the performance of neurosurgery.

AN OVERVIEW OF THE CASE

9. On 30 October 2013, the plaintiff Sandra Battersby underwent a CT scan which had been arranged for her by an Ophthalmologist for the diagnostic evaluation of what were thought to be optic nerve and retinal abnormalities. The CT scan showed evidence of a left sided supratentorial enhancing calcified mass which was thought to be meningioma. A subsequent MRI scan of the brain confirmed the presence of an inferior left sided extra-axial mass within the anterior of the middle cranial fossae, extending to the left parasella area and left cavernous sinus.

10. The defendant is a specialist Neurosurgeon. Mrs Battersby consulted him on 8 December 2013, at which time he advised her to undergo surgery. On 10 December 2013 the defendant performed a left fronto-temporal craniectomy on Mrs Battersby. Mrs Battersby alleges that during the course of that surgery, damage was caused to her left middle cerebral artery which was subsequently confirmed by CT scan. CT scans of the brain also demonstrated ischemia within the left hemisphere in the area of the supply of Mrs Battersby’s left middle cerebral artery.

11. On 11 December 2013, the defendant performed a further craniectomy on Mrs Battersby, in the form of an extracranial-intracranial bypass. That was followed by the removal of a clot lodged within Mrs Battersby’s left middle cerebral artery. CT scans of her brain which were performed on the same day demonstrated an infarction on the left hand side within the frontal and temporal lobes, the former being associated with a haemorrhagic transformation.

12. Mrs Battersby alleges that as a consequence of the defendant’s negligence, she has developed a right hemiplegia which has given rise to significant disabilities. The allegation of negligence is denied by the defendant.

13. Mrs Battersby’s husband, Darrel Battersby, has commenced separate proceedings against the defendant. He alleges that he has suffered nervous shock as a result of witnessing the effect of the allegedly negligent surgery performed by the defendant on his wife. Liability is also in issue in those proceedings.

THE HISTORY OF THE PROCEEDINGS

14. Contained in Exh. C is a chronology prepared by counsel for the defendant, the accuracy of which was not disputed. It contains the following entries:

? date    Plaintiffs’ solicitor contacts neurosurgeon for purposes of qualifying him. The practitioner declined to provide a report.

19.02.15    Plaintiffs’ solicitor forwards letter of instructions to Dr Milder, Neurologist.

28.09.15    Proceedings commenced in District Court of New South Wales.

October 2015    Plaintiffs serve the report of Dr Dan Milder, Neurologist, dated 19 February 2015.

16.10.15    Defendant’s solicitors correspond with the plaintiffs’ solicitor seeking confirmation as to whether they intend to serve report(s) from a neurosurgeon.

25.11.15    District Court orders Mrs Battersby to complete service of her liability and quantum reports by 23 February 2016.

03.12.15    Plaintiffs’ solicitor corresponds with Neurosurgeon for the provision of an expert report. The practitioner contacted declines to provide a report.

25.02.16 Defence filed, pleading section 5O of the Civil Liability Act2002 (NSW).

16.03.16    Defendant’s solicitors correspond with the plaintiffs’ solicitor seeking confirmation as to whether the plaintiffs have served all their evidence pursuant to the orders of 25 November 2015.

22.04.16    Defendant’s solicitors correspond with the plaintiffs’ solicitors, objecting to the report of Dr Milder’s report on the basis of a lack of expertise in Neurosurgery, and seeking again confirmation as to whether the plaintiffs intend to serve any further evidence on liability.

22.04.16 to 17.07.16    Plaintiffs’ solicitor contacts three neurosurgeons seeking liability report. Each declines to provide a report.

27.04.16    District Court orders the plaintiff to serve any Neurosurgeon evidence by 30 June 2016

19.07.16    District Court ordered the plaintiff to serve any Neurosurgeon evidence by 16 December 2016

Late July 2016    Plaintiffs’ solicitor determines to proceed without a Neurosurgeon’s report and to rely on the report of Dr Milder.

19.01.17    District Court orders that any further application in respect of the plaintiffs’ evidence be supported by an affidavit, in the absence of which no further orders for service of primary evidence will be made.

07.02.17    District Court notes that the plaintiff has completed service of expert evidence in relation to liability, causation and damages, save for any evidence in reply from existing experts,

District Court orders defendant to complete service of expert evidence by 23 May 2017. Matters fixed for hearing with a 5 day estimate on 23 October 2017.

04.05.17    Defendant serves a report of Professor Laidlaw, in accordance with orders of 7 February 2017.

12.07.17    Plaintiffs serve a report of Dr Webster.

13.07.17       Mediation

31.07.17    Defendant’s solicitor corresponds with plaintiffs’ solicitor objecting to the report of Dr Webster.

August 2017    Proceedings transferred to the Supreme Court of New South Wales.

21.08.17    Directions hearing. Supreme Court notes that the plaintiff advises that all evidence has been served.

22.09.17    Defendant’s solicitor corresponds with the plaintiffs’ solicitor repeating objections to the reports of Dr Milder and Dr Webster.

28.09.17       Defendant files the present Notion of Motion

THE REPORT OF DR MILDER

15. Paragraph 3 of the motion seeks an order excluding the report of Dr Milder of 19 February 2015. Paragraph 5 seeks further order that Dr Milder be excluded from participation in any conclave of experts which might be ordered for the purposes of the hearing of the proceedings.

16. Dr Milder is a consultant Neurologist. A letter of instructions was forwarded to him on 19 February 2015 by the plaintiffs’ solicitor in the following terms (inter alia):

As to liability:

(a)   Was the surgery performed by Dr Allan necessary and appropriate to treat the Plaintiff’s condition having regard to her age, symptoms and the nature of her meningioma?

(b)    Did Dr Allan exercise the care and skill on would expect from a neurosurgeon of his professional experience in performing the surgery and in particular does the thermal injury to the cerebral artery represent a departure from an acceptable level of care?

(c)   Were the actions of Dr Allan that he undertook prior to closing the operative site after the first operation appropriate and sufficient to reveal the nature and extend of the injury to the middle cerebral artery?

(d)   If the answer to the previous question is no what should Dr Allan have done prior to closing the operative site.

(e)    What consequences flow from the delay in the treatment of the injuries cerebral artery?

17. In response to those instructions, Dr Milder provided a report of 19 February 2015 in which, having set out the history of the surgery which is the subject of the present proceedings, he stated the following under the heading “Opinion”:

Mrs Battersby clearly required the partial resection of an almost certain meningioma.

It is entirely possible likely to the point of fair certainty, that were the resection to have been more “limited”, trauma to the left middle cerebral artery, resulting in its occlusion and a subsequent left hemisphere infarction, would not have resulted. A more limited resection might then have been followed by a stereotactic radiotherapy, arresting or markedly limiting further growth of the tumour. A permanent marked impairment of speech and a permanent marked right sided weakness would then not have resulted.

The opinion above is that of a neurologist.

A neurosurgical opinion evaluating the above might be obtained.

18. That report contains no formal statement of Dr Milder’s qualifications, no acknowledgment of the Code of Conduct which applies to expert witnesses, and no acknowledgment of his willingness to be bound by the terms of that Code. However, the defendant raises no specific issue in respect of any of these matters. The defendant’s fundamental objection to the report is that Dr Milder lacks the necessary expertise to express at least some of the opinions which are contained within it.

THE REPORT OF DR WEBSTER

19. Dr Webster is a Neurosurgeon who provided an undated report to the plaintiffs’ solicitors which was served on the defendant on 12 July 2017. Unlike the position in respect of Dr Milder, the defendant does not challenge Dr Webster’s qualifications or expertise. The orders sought by the defendant in respect of Dr Webster’s report, and in respect of any participation by Dr Webster in an expert conclave, are based upon the fact that the report was not served in accordance with orders made by the District Court prior to the matters being transferred to this Court.

20. In that regard, the chronology establishes the following:

1. on 16 October 2015, following the service of the report of Dr Milder, the defendant’s solicitors enquired of the plaintiffs’ solicitors whether they intended to qualify a Neurosurgeon. On the evidence before me, the plaintiffs’ solicitors did not respond;

2. on 25 November 2015, the plaintiffs were ordered to complete service of expert evidence by 23 February 2016;

3. on 16 March 2016, the defendant’s solicitors sought confirmation from the plaintiffs’ solicitors that all expert evidence has been served. On the evidence before me, the plaintiffs’ solicitors did not respond;

4. On 27 April 2016 the plaintiffs were ordered to serve any expert evidence from a Neurosurgeon by 30 June 2016;

5. On 19 July 2016 the plaintiffs were ordered to serve any expert evidence from a Neurosurgeon by 16 December 2016;

6. On 19 January 2017, it was ordered that any further application in relation to the service of the expert evidence to be relied upon by the plaintiffs be supported by an affidavit, in the absence of which no further orders allowing for service of evidence would be made;

7. On 7 February 2017, the Court noted that the plaintiff had completed service of all primary expert evidence;

8. On 12 July 2017, the plaintiffs’ solicitor served the report of Dr Webster.

21. It is noteworthy that the report of Dr Webster was served a little over two months after the defendant had served, in accordance with the timetable set by the Court, a report of Professor Laidlaw, a Neurosurgeon. It is an inescapable inference that up until that time, the plaintiffs’ solicitor had made a forensic decision to conduct the respective cases on liability by relying solely upon the report of Dr Milder, and that it was only when served with Professor Laidlaw’s report that he renewed his earlier (unsuccessful) attempts to qualify a Neurosurgeon.

22. It should also be noted that Dr Webster’s report was served more than six months outside the last extension of the timetable which had been granted by the District Court. Moreover, the service of the report was not accompanied by the affidavit which was ordered by the Court to be provided in the event that there was any further application regarding service of evidence, much less accompanied by any notice of motion seeking orders extending the time for service.

THE ISSUES

23. The defendant’s motion gives rise to the following issues:

1. Is the opinion of Dr Milder admissible having regard to the provisions of s. 79 of the Evidence Act 1995 (NSW) (“the Act”)?

2. Do the provisions of r. 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) govern the admissibility of the report of Dr Webster?

3. If so, should the operation of that rule be dispensed with in the exercise of my discretion?

4. If the operation of the rule is not dispensed with, are there exceptional circumstances within the meaning of r. 31.28 justifying the admission of Dr Webster’s report?

5. To what extent do provisions of the Civil Procedure Act 2005 (NSW) impact upon the admissibility of Dr Webster’s report?

IS THE OPINION OF DR MILDER ADMISSABLE?

The relevant legislation

24. Section 79 of the Act is in the following terms:

79 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.

The evidence

25. The evidence establishes that Dr Milder is a Consultant Neurologist. He began specialist medical training in Neurology in 1975. He became a Fellow of the Royal Australasian College of Physicians in 1982. That fellowship has continued until the present time. He held an appointment in a Department of Neurology examining neuropathological material, including brains at post-mortem, for more than 15 years from 1981.

26. On 14 November 2017, in response to the issues raised on the present motion, the plaintiffs’ solicitor wrote to Dr Milder requesting a supplementary report “setting out (his) specialised knowledge, based on training, study or experience, to express the opinions (he has) given in (his) previous report”. On 16 November 2017 Dr Milder responded as follows:

A Consultant Neurologist is required to have a detailed understanding of the anatomy of the brain and the deficits resulting from damage to the brain.

A Fellow in Neuropathology is required to have expertise in the macroscopic and microscopic examination of the brain and to be able to formulate the likely result of disease processes. The latter includes the likely effects of tumours and their attempted removal.

27. On 16 November, the plaintiffs’ solicitor wrote to Dr Milder again in (inter alia) the following terms:

We request some further answers to the following questions specifically:

Could you please expand on the relationships between your description of yourself as a consultant neurologist and your fellowship of the Royal Australian College of Physicians?

Could you please also clarify whether a fellowship in neuropathology is a separate fellowship or part of the same fellowship of the College of Physicians?

Finally, could you please elaborate on your own professional expertise to explain the opinions you have given in your report dated 19 February 2015?

Your letter of 16 November 2016 talks about the situation generally, but does not flesh it out in relation to your particular situation.

We apologise for seeking this elaboration, however, this has become necessary in the circumstances of this case.

28. On 16 November 2017 Dr Milder responded in the following terms:

Satisfactory training in Internal Medicine and Neurology enables the granting of the title of Fellow of the Royal Australasian College of Physicians and recognition of the right to practise as a Consultant Neurologist.

The title “Fellow in Neuropathology” usually refers to a Trainee in Neurology or a Consultant in Neurology, who has an appointment in a Department of Neuropathology, usually between one and two years duration. Should the “Fellow” continue thereafter to examine neuropathologic material, including the examination of brains at post-mortem, the title “Fellow” in “Neuropathology” continues to apply.

The opinions of (sic) my report of 19 February 2015 are based on training in Neurology commencing in 1975; a Consultancy in Neurology commencing in 1982, continuing to the present; and a position as a Fellow in “Neuropathology” commencing in 1981, continuing thereafter in excess of fifteen years.

29. As I have noted, the evidence before me includes the Curriculum, which sets out a number of training pathways which extend to training in Neurology and continuing professional development. The Curriculum makes it clear that the training and skill of a Neurologist includes training in Neuroanatomy and Neuropathology, including the study of brain tumours and associated surgery. At p. 3 it records the following:

Development of the Neurology Advanced Training Curriculum was overseen by the Specialty Training Committee in Neurology. A group of Fellows met to discuss and agree on the aims of the curriculum, the outline of the curriculum, and to determine appropriate content. The curriculum was written by the Chair of the group, and all members of the group provided feedback. The curriculum was then sent to a further group of Fellows who reviewed the document and suggested changes. The final document incorporated in the changes was ratified by the Special Training Committee in Neurology.

The process was managed by the Curriculum Development Unit within the College’s Education Deanery, who designed the document, drafted content material, organised and facilitated writing workshops, developed resource materials, and formatted the final document.

30. The Curriculum also sets out specific learning objectives by reference to what are described as “Themes”. Theme 4.5 (at p. 37) is entitled “Neurosurgery and Vascular Surgery” and states, as its learning objective:

… the indications for, and complications of, common neurosurgical and vascular surgery procedures.

31. It then states the following:

Surgical Procedures Relevant to Neurology include:

Brain tumour surgery, e.g. biopsy, debulking and excision

Vascular surgery, e.g. aneurysm clipping and coiling and carotid endarterectomy

Spinal surgery, e.g. laminectomy and microdiscectomy

CSF shunting procedures

functional neurosurgery, e.g. procedures for epilepsy and movement disorders and deep brain stimulation

Knowledge and skills

Describe the relevant neuroanatomy, neurophysiology, and neuropathology

Identify and describe the diseases, common and rare, acute and chronic, which may require the involvement of a neurosurgeon

Outline the basic principles of the techniques used by neurosurgeons and vascular surgeons along with a potential complications of any procedures involved

Recognise the role of the neurosurgeon and vascular surgeon, and when referral is appropriate.

32. The evidence does not enable me to conclude that Dr Milder followed the precise course of study set out in the Curriculum in its current form. However, I am satisfied on the whole of the evidence that he must necessarily have followed a similar course of study in order to be conferred with the Fellowship to which he referred in his correspondence.

SUBMISSIONS OF THE PARTIES

Submissions of the defendant

33. The defendant’s challenge to the admissibility of Dr Milder’s report was based upon a challenge to his expertise. Shortly put, it was the submission of counsel for the defendant that as a Neurologist, Dr Milder lacked the necessary expertise to express an opinion in relation to matters of Neurosurgery. It was submitted that the opinion he had expressed was the province of a Neurosurgeon, not a Neurologist.

34. It was submitted that Dr Milder’s opinion regarding the manner in which the surgery upon Mrs Battersby ought to have been performed, as well as the opinion that he expressed concerning post-operative management, fell outside of his field of training, study, and experience and was, by operation of s. 79 of the Act, inadmissible. Counsel for the defendant submitted that such a fundamental shortcoming was not overcome by the most recent reports from Dr Milder which provided further information regarding his qualifications and experience.

35. Counsel accepted that as a Neurologist, Dr Milder could express an opinion about matters going to damages and cited, as an example of what might fall within his field of expertise, evidence as to injuries sustained as a consequence of surgery. However, counsel submitted that Dr Milder was in no position to comment upon, and/or express an opinion about, the performance of Neurosurgery, for the simple reason that he was not a Neurosurgeon.

36. Counsel for the defendant also relied upon Dr Milder’s response, or perhaps more specifically what was said to be his lack of response, to the subpoena which had been served upon him. It was submitted that Dr Milder had been given the opportunity to demonstrate to the Court, by properly responding to the subpoena, that he had the requisite training, study and experience to express the opinions that he had expressed, but that he had failed to do so. In particular, it was submitted that there was nothing produced pursuant to the subpoena which demonstrated that Dr Milder had ever undertaken any advanced Neurological training.

37. Finally, as part of the objection taken to the report of Dr Milder, counsel for the defendant drew my attention to the letter of instructions which had been provided to him by the plaintiffs’ solicitor. It was submitted that it was inherent in the terms of that correspondence that Dr Milder had been asked to express an opinion about the method and manner of Neurosurgery which he was not, for the reasons previously submitted, properly qualified to express.

Submissions of the plaintiffs

38. Counsel for the plaintiffs submitted that the evidence established that Dr Milder had the requisite specialised knowledge to allow him to express the opinions contained in his report. It was submitted that this was evident from his more recent report of 16 November 2017, as well as the contents of the Curriculum. It was submitted, in particular, that it was evident from the Curriculum that the training of a qualified consultant Neurologist included an emphasis on Neuroanatomy and Neuropathy, as well as the study of (inter alia) brain tumours.

39. Counsel for the plaintiffs submitted that the defendant had advanced no rational basis upon which it was open to conclude that only a Neurosurgeon is qualified to comment upon another Neurosurgeon’s skill and that in all of these circumstances, the opinion of Dr Milder was admissible.

Consideration

40. Section 79 of the Act imposes two preconditions to the admissibility of expert opinion evidence, namely:

1. the witness must have specialised knowledge based on his or her training, study or experience: Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]; and

2. the opinion expressed by the witness must be wholly or substantially based on that knowledge: Dasreef at [32]; Honeysett v R (2014) 253 CLR 122; [2014] HCA 29 at [23].

41. Whether formal qualifications will be sufficient to demonstrate the necessary expertise in relation to particular applications of such qualifications is necessarily a matter which must be determined according to the facts of the particular case. That issue has been considered in the context of expert evidence from medical practitioners.

42. For example, in R v Anderson (2000) 1 VR 1; [2000] VSCA 16 the Court considered the issue of whether an emergency medicine specialist was appropriately qualified to express an opinion on the question of whether knife wounds were self-inflicted. In concluding that the evidence was not admissible, Winneke P (with whom Phillips and Chernov JJA agreed) said (at [58]):

58. …. [N]either the opinion of Mr. Campbell nor that of Dr. Castle should have been permitted to go before the jury. In my view, neither had shown himself to be qualified to express an opinion in the field of expertise claimed and neither had demonstrated any factual or scientific foundation for the opinion expressed. …. Neither Campbell nor Castle claimed to have acquired such an expertise. There was no doubt about their expertise as medical practitioners in their respective fields but, as Brennan, J. pointed out in Murphy v. The Queen [1989] HCA 28; (1989) 167 C.L.R. 94 at 120, the "admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by the admission of the evidence". His Honour referred to the passage in Wigmore on Evidence (Chadbourn Rev., 1979) Vol.2, p.750 where it is stated that:

"The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand. ... Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person."

So here, there could be little doubt that Campbell and Castle would have an expertise to express opinions on a range of medical matters, but it was apparent, in my opinion, from their evidence that they were not appropriately qualified to express an opinion on the particular subject matter in question.

43. A different conclusion was reached in R v Farquharson (2009) 26 VR 410; [2009] VSCA 307 where the Court considered whether an opinion expressed by a specialist thoracic physician was admissible to prove that a person was not likely to have suffered a cough syncope before driving a car off a road and into a dam. The Court (Warren CJ, Nettle JA (as his Honour then was) and Redlich JA) said at [79] (citations omitted):

79   …[T]here must be an identified aspect of that field of specialised knowledge in which the witness demonstrates that, by reason of specific training, study or experience, the witness has become an expert. The nature and extent of studies required, however, depend on the science in question. It is important to keep in mind that it is not only the general nature, but also the precise character of the question upon which expert evidence is sought to be given which is determinative of whether the putative expert’s qualifications are sufficient. Satisfaction of the second test is thus a question of fact and degree. For example, it has been held that it is not necessary for a general practitioner to have specialised in studies concerned with the rate at which alcohol metabolizes in order to give evidence of that rate based on analysis tables. On the other hand, an emergency-room physician and a surgeon who treated an accused for knife wounds following the death of his wife were held not to be competent to give expert opinion evidence as to whether the wounds were self-inflicted. In the former case, it was considered that the rate at which alcohol metabolizes was a matter within the ordinary knowledge of a general practitioner and, therefore, something on which he was entitled to refresh his memory from a publication of the British Medical Association which provided the current knowledge on the subject. In the latter case, the forensic analysis of knife wounds (in order to determine the probability of self-infliction) was found to be a specialised field of knowledge within medicine in which neither the physician nor the surgeon was able to demonstrate that he was qualified by study or experience.

44. Neither party in the present case adduced any specific evidence as to the extent of the differences in the specialties of a Neurologist on the one hand, and a Neurosurgeon on the other. However, the definitions of those terms are informative.

45. The Macquarie Dictionary (7th Edition) contains the following definitions:

Neurology – the branch of anatomy or physiology that deals with the nerves or the nervous system, especially the diseases thereof.

Neurosurgery – the branch of medicine relating to the nervous system.

46. Blakiston’s Gould Medical Dictionary (2nd Edition) contains the following definitions:

Neurology – The study of the anatomy, physiology and pathology of the nervous system and treatment of its disorders.

Neurosurgery – Surgery of the nervous system.

Neurologist – A person versed in neurology, usually a physician who specializes in the diagnosis and treatment of disorders of the nervous system and the study of its functioning.

Neurosurgeon – A physician who specializes in surgery in the central and peripheral nervous system.

47. It will be apparent from these definitions that although the two specialties are different, they have a number of common features. Both are centred on diseases of the nervous system and the brain. Both necessarily require knowledge of the anatomy and physiology of the brain. Both stem from common areas of training, study and experience in diseases of the nervous system and the brain. The principal difference between the two is that a Neurologist is primarily concerned with the treatment and management of such diseases, whilst a Neurosurgeon is primarily concerned with the conduct of surgical procedures in relation to them. However as I have pointed out, fundamental to both specialties is expertise in the anatomy, physiology and pathology of the nervous system, including the brain.

48. The unchallenged evidence before me is that a Neurologist is required to have a detailed understanding of (inter alia) the anatomy of the brain, and the deficits resulting from damage to the brain. The evidence also establishes that a Fellow in Neuropathology (Dr Milder having held such a Fellowship since 1981) is required to have expertise in the macroscopic and microscopic examination of the brain. The opinion expressed by Dr Milder in the present case is clearly based upon his knowledge of, and his training, study and experience in, those matters. It is also evident that Dr Milder’s opinions are based, at least in part, upon matters of physiology, an area in which he has considerable training, study and experience.

49. I am mindful of the observations of the Court in Farquharson (at [79]) regarding the importance of considering the precise character of the question upon which the expert evidence is sought to be given. In the present case, the precise character of the question is centred upon a surgical procedure to an area of the anatomy in which he has considerable training, study and experience. It may be the case that ultimately, the weight to be attached to Dr his opinion is less than that to be attributed to the opinion of a Neurosurgeon. However, questions of admissibility must not be confused with questions of weight: Farquharson at [81].

50. Further, I am not persuaded that Dr Milder’s response to the subpoena served on him by the defendant has any real bearing on the issue of the admissibility of his opinion. His qualifications and experience are set out in the evidence to which I have referred, much of which Dr Milder provided to the plaintiffs’ solicitors. That evidence, and its veracity, is unaffected by his response to the subpoena.

51. For all of these reasons, I am satisfied that the opinion of Dr Milder is one of specialised knowledge based upon his training, study and experience. Accordingly, the provisions of s. 79 of the Act are satisfied, and the opinion is admissible.

Do the provisions of r. 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) govern the admissibility of the report of Dr Webster?

If so, should the operation of that rule be dispensed with?

52. These questions may conveniently be dealt with together.

The relevant legislation

53. Rule 31.28 of the Rules is in the following terms:

31.28 Disclosure of experts' reports and hospital reports

(1) Each party must serve experts' reports and hospital reports on each other active party:

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties:

(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) 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 subrule (1).

54. Section 14 of the Civil Procedure Act 2005 (NSW) (“the CPA”) is in the following terms:

14 Court may dispense with rules in particular cases

In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

Submissions of the defendant

55. Counsel for the defendant submitted that r. 31.28 clearly governed the admissibility of Dr Webster’s report, along with other provisions of the CPA. It was submitted, in particular, that the report of Dr Webster was an “expert report” within the meaning of the rule and that the effect of r. 31.28(3) was to render inadmissible an expert report unless it had been served in accordance with the rule, or unless leave were granted on one of the bases in r. 31.28(4).

Submissions of the plaintiffs

56. Counsel for the plaintiffs submitted that the defendant had misconstrued r. 31.28. It was submitted that, in effect, the plaintiff was asking the Court to extend, pursuant to r. 2.1 of the Rules, the time for service of Dr Webster’s report. It was submitted that in circumstances where the plaintiff had made such an application, r. 31.28 had no application.

Consideration

57. In my view, there is no doubt whatsoever that r. 31.28 governs the admissibility of Dr Webster’s report. The submission advanced on behalf of the plaintiffs is an inherently circular one. If it were correct, a party would only have to make an application under r. 2.1 to entirely circumvent the effect of r. 31.28. Such a result would be plainly absurd, and not one that could possibly have been intended.

58. Whether the operation of r. 31.28 should be dispensed with is a separate question, and one which I addressed in Capar v SPG Investments Pty Limited trading as Lidcombe Power Centre (No. 1) [2017] NSWSC 1371 at [17]:

In order to satisfy me that I should dispense with the operation of r. 31.28, the defendants bear the onus of establishing that the exercise of my discretion under s. 14 is appropriate in the circumstances of the present case. As a general proposition, that requires that there be some proper reason advanced for the non‑compliance with r. 31.28: Iovanescu v McDermott [2004] NSWCA 106 at [3] and [5].

59. The plaintiffs have adduced no evidence which would justify the exercise of the discretion contained in s. 14 of the CPA.

If the operation of the rule is not dispensed with, are there exceptional circumstances within the meaning of r. 31.28 justifying the admission of Dr Webster’s report?

To what extent do provisions of the Civil Procedure Act 2005 impact upon the admissibility of Dr Webster’s report?

60. Again, these questions can be conveniently dealt with together.

The relevant legislation

61. In addition to r. 31.28, there are a number of provisions of the CPA which impact upon these questions. Firstly, s. 56 of the CPA is in the following terms:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6) For the purposes of this section, a person has a

"relevant interest" in civil proceedings if the person:

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

62. Section 57 of the CPA sets out the objects of case management of proceedings in the following terms:

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

63. Sections 58 of the CPA is in the following terms:

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

64. Finally s. 61 of the CPA is in the following terms:

61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following:

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) …

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

Submissions of the defendant

65. Counsel for the defendant submitted that there were no exceptional circumstances within the meaning of r. 31.28 which would warrant the admission of Dr Webster’s report. It was further submitted that for the purposes of determining whether exceptional circumstances were made out, there was necessarily some interaction between the provisions of r. 31.28 and the provisions of the CPA outlined above. It was submitted that it was readily apparent that r. 31.28 formed part of the relevant case management regime, and that the dictates of justice in the CPA operated to limit the circumstances in which the court could exercise its power to grant the leave required under r. 31.28 in order for the report of the Dr Webster to be admissible.

66. Counsel placed considerable emphasis upon the failures of the plaintiffs’ solicitor to comply with orders of the District Court requiring the service of expert evidence. It was submitted, in particular, that nothing contained in the affidavit material relied upon by the plaintiffs advanced any explanation for the failure to serve a report from a Neurosurgeon in accordance with the orders which had been made. It was submitted that in light of the history of the proceedings, a limit had been reached which justified a finding that no exceptional circumstances had been made out.

Submissions of the plaintiffs

67. Counsel for the plaintiffs submitted that the dictates of justice warranted the admission of Dr Webster’s report. It was submitted, in particular, that the affidavit evidence of the plaintiffs’ solicitor established that for a long period of time he had made extensive efforts to obtain a report of a Neurosurgeon without success.

68. Counsel further submitted that the final hearing of the matter was not due to take place until June of 2018. He submitted that in these circumstances, and bearing in mind the time at which Dr Webster’s report had been served, there was no prejudice to the defendant in the event that the report was admitted.

69. Finally, counsel emphasised the consequences which would flow to the plaintiffs if the report of Dr Webster were excluded and submitted that a combination of all of these factors constituted exceptional circumstances.

Consideration

70. In Yacoub v Pilkington Limited [2007] NSWCA 290, Campbell JA (with whom Tobias JA and Handley AJA agreed) specifically considered the meaning of the term “exceptional circumstances” (at [66]):

66 Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

71. His Honour then said:

67 In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.

72. It is clear from his Honour’s observations at [67] that the provisions of r. 31.28, and those of the CPA which I have outlined above, together constitute a regime of case management which is directed to the just, quick and cheap resolution of the real issues in any proceedings.

73. In the present case, the evidence establishes that a number of attempts were made by the plaintiffs’ solicitor, without success, to retain a Neurosurgeon for the purposes of providing an expert report. The evidence also establishes that one of the principal reasons for those difficulties was an expressed reluctance on the part of those experts who were approached to comment upon surgery which had been conducted by a professional colleague. However as I have previously noted, the only inference which can be drawn is that having encountered those difficulties, the plaintiffs’ solicitor made a conscious forensic decision to conduct the cases for the plaintiffs based solely upon the report of Dr Milder. He then reconsidered, and reversed, that decision when served with the report of Professor Laidlaw, renewing his attempts to qualify a Neurosurgeon, and ultimately serving the report of Dr Webster.

74. The preparation of the plaintiffs’ cases, at least from the point of view of obtaining expert evidence, appears to have been conducted in what might be described as a reactive way. A prudent solicitor, in preparing a case for a plaintiff, should address questions of evidence by reference to those matters which are in issue on the pleadings, and thus those matters which the plaintiff will be required to prove in order to establish his or her case. Cases brought by a plaintiff are not, or at least should not be, prepared in a reactive way, in response to evidence served by a defendant. It is, to some extent, the latter approach which has led, at least in part, to the late service of the report of Dr Webster in the present case.

75. Moreover, during the period which intervened between the service of the report of Dr Milder and the service of the report of Dr Webster, the proceedings came before the District Court on numerous occasions for case management purposes. On more than one of those occasions, the time for service of the plaintiff’s expert medical evidence was extended. Importantly, on 19 January 2017 it was ordered that any further application in respect of the service of expert evidence by the plaintiffs be supported by an affidavit.

76. The subsequent service of the report of Dr Webster ignored the entirety of those orders and was affected in a way which was completely at odds with the management of the proceedings up until that time. The letter serving the report of Dr Webster was not accompanied by any affidavit in accordance with the orders which had been made, much less by a notice of motion seeking an extension of time in which it could be served. The plaintiffs’ solicitor appears to have proceeded on the assumption that by simply serving the report, the plaintiffs would be entitled to rely upon it. Any further comment on the wholly unsatisfactory nature of that approach would be superfluous. There is considerable merit in the submissions advanced on behalf of the defendant in this respects.

77. That said, it remains the case that the hearing of the proceedings will not be delayed as a consequence of the service of Dr Webster’s report. Moreover, and although the report was served outside of orders made by the Court, counsel for the defendant candidly, and properly, conceded that there would be no demonstrable prejudice to the defendant if the report were admitted. Perhaps even more importantly, if the report were excluded it would leave the plaintiffs in a position where they would be precluded from relying upon important expert evidence in support of their respective cases. That, in addition to the matters to which I have already referred, is sufficient in my view, to constitute exceptional circumstances.

78. In the course of submissions it was suggested by counsel for the defendant, albeit feintly, that it was relevant to take into account that in the event that the report of Dr Webster were excluded, the plaintiffs may have some cause of action against their solicitor. If that be a possibility, it is one which is of little weight in the discretionary exercise: Repco Corp Limited v Scardamaglia [1996] 1 VR 7 at 15 per Smith J; Simms v Western Sydney Area Health Service [2003] NSWSC 445 at [11]-[12] per Burchett AJ.

79. It follows that in my view, exceptional circumstances are established for the purposes of r. 31.28(4)(a) and leave should be granted to admit the report of Dr Webster.

ORDERS

80. I make the following orders:

1. Proceedings 2015/00283601 and 2015/00283267 are to be heard together.

2. The notice of motion and supporting affidavits of Leonie Ruth Beyers filed in proceedings 2015/00283610 are also read in proceedings 2015/00283267.

3. Leave is granted to the plaintiffs to tender the report of Dr Webster pursuant to r. 31.28(3) and (4) of the Uniform Civil Procedure Rules 2005 (NSW).

4. The defendant’s notice of motion is otherwise dismissed.

5. Costs of the motion are reserved.

6. Absent agreement, the parties are to provide written submissions as to costs by 5:00pm on Wednesday 31 January 2018, such submissions not to exceed two pages in length in each case.

7. The proceedings are listed for further directions before me on Friday 2 February 2018 at 9:30am.

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Decision last updated: 15 December 2017