Tabet bht Sheiban v Mansour - [2006] NSWSC 754

CITATION: Tabet bht Sheiban v Mansour & Ors [2006] NSWSC 754

HEARING DATE(S): 19-26 July 2006

JUDGMENT DATE :
27 July 2006

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: Leave granted to the plaintiff to adduce expert evidence inconsistent with the content of the joint experts' report. It is a condition of the grant of leave that the plaintiff calls Dr Hopkins to give evidence. All questions of costs reserved arising from the grant of leave.

LEGISLATION CITED: Supreme Court Rules
Uniform Civil Procedure Rules

CASES CITED: Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930
Booth v Di Francesco [2002] NSWSC 154
Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738
Habelrih v Szirt [2004] NSWSC 54
Queensland v J & L Holdings Pty Limited (1996-97) 189 CLR 146
Spasovic v Sydney Adventist Hospital [2002] NSWSC 164
Tabet by her tutor Sheiban v Mansour [2005] NSWSC 908

PARTIES: Reema Tabet by her tutor Ghassan Sheiban (Plaintiff)
Dr Albert Mansour (1st Defendant)
Dr Maurice Gett (2nd Defendant)

FILE NUMBER(S): SC 20239/01

COUNSEL: G.B. Hall QC/Dr R. Pincus (Plaintiff)
M.T. McCulloch SC/T. Berberian (Defendants)

SOLICITORS: Miller Goddard Solicitors (Plaintiff)
Blake Dawson Waldron (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Thursday 27 July 2006

20239/01 REEMA TABET by her tutor GHASSAN SHEIBAN v DR ALBERT MANSOUR & ANOR
JUDGMENT

1 HIS HONOUR: After Dr Kohn had completed his evidence on Monday last, Mr McCulloch sought to tender a joint experts' report. Mr Hall took objection to the tender and the important issues to which the tender gives rise were the subject of extensive submissions by counsel. Having heard counsel, I reserved my decision in order to consider the relevant evidence.

2 On 8 August 2002 I made an order pursuant to Pt 36 r 13CA of the former Supreme Court Rules for a number of experts to confer on certain specified matters. The experts were directed to endeavour to reach agreement in relation to certain questions and to provide the court with a joint report specifying the matters agreed and the matters not agreed, and the reason or reasons for any non-agreement.

3 The experts conferred on 8 November 2002 and in due course they furnished a report bearing that date. The various experts, Professor Robert Jones, Dr Ian Hopkins, Dr Ian Johnston and Associate Professor John Watson were signatories to the report. They found themselves able to agree upon the answers to the questions, in turn agreed upon, which were submitted for their consideration:

"1. Assuming that in Reema Tabet's case:

· there had been no delay in diagnosis of the medulloblastoma between 28 December 1990 and 14 January 1991; and

· no lumbar puncture performed on 13 January 1991; and

· conventional treatment given by excision of the medulloblastoma, chemotherapy and radiotherapy,

would you consider it likely or unlikely that Reema would [have] suffered any or all of the following…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2006] NSWSC 754
Decision Date: 27 July 2006

CaseChat Overview and Summary

The case of Tabet bht Sheiban v Mansour involved a dispute over professional negligence. The plaintiff, Reema Tabet, sought leave to adduce expert evidence inconsistent with a joint experts' report, which was the outcome of an expert conference directed by the Court. The defendants, Dr Albert Mansour and Dr Maurice Gett, opposed the plaintiff's application, arguing that the joint report should be binding. Studdert J considered the relevant legal issues, including the objectives of ordering joint conferences of experts and the discretion of the Court to grant leave to adduce inconsistent expert evidence. After close consideration of the evidence and submissions, Studdert J concluded that there were exceptional circumstances in this case, warranting the grant of leave. The Court granted leave to the plaintiff to introduce expert evidence inconsistent with the joint report, subject to the condition that the plaintiff call Dr Hopkins to give evidence. All questions of costs arising from the grant of leave were reserved.

Orders