Turner v Eastern Sydney Area Health SVC & Ors No. Scgrg-94-1382 Judgment No. S1

[1999] SASC 1

TURNER v EASTERN SYDNEY AREA HEALTH SERVICE & ORS

[1999] SASC 1

MISCELLANEOUS APPEAL

1 WICKS J                  This is an appeal by the first defendant in the action, Eastern Sydney Area Health Service ("the appellant"), from a Master whereby he ordered that the appellant deliver a medical report to the other parties in the action as required by SCR38.01(1) and (2).  The application was made pursuant to SCR38.01(4) which is as follows:

1. Where a party contends that the party’s case will be unfairly prejudiced by the disclosure of a particular expert report, the party may, before or within seven days after the party is required to deliver that report, file a copy of that report in a sealed envelope which is not to be opened except by the authority of the Court and apply ex parte to the Court for an order that the party be not required to deliver that report pursuant to Rule 38.01."

2 In this action, the plaintiff, Mrs Ann Turner, claims damages for injury suffered as a result of the alleged negligence of the appellant and the other defendants in connection with the performance upon the plaintiff of a psycho-surgical procedure.  In connection with this litigation, the appellant approached a neurosurgeon, Dr Lloyd, to seek his expert opinion on certain aspects of the plaintiff’s condition.  The solicitors for the appellant specifically requested that Dr Lloyd discuss his opinion with them prior to writing the report.  However, Dr Lloyd went ahead and wrote the report without discussing his conclusions with the appellant’s solicitors.  Dr Lloyd’s report contained an opinion that the first defendant was negligent in its post-operative care of the plaintiff.  Consequently, the first defendant sought an order from a Master of the court that it be not required to deliver the report to the plaintiff pursuant to SCR38.01: SCR38.01(4).  The learned Master refused the appellant’s application.  The appellant now appeals from that decision.
3 In par7 of the Statement of Claim it is alleged that the appellant negligently and unskilfully diagnosed, advised and treated the plaintiff.  Certain particulars of negligence on the part of the appellant are supplied.  Some of the particulars contained in par7(c) are relevant to this matter.  So far as is material, that paragraph reads as follows:
"The first named defendant [the present appellant] was negligent in that it by its servants and/or agents Drs Matheson, Smith and Professor Kiloh or otherwise:-

(a) - (b)     ...

(c)     carried out treatment which was not properly performed or completed.  The probes penetrated into the dominant hemisphere broca’s area thus bringing about linguistic disorder.  The incorrect trajectory for the probes was used and the entry point was made too far posteriorly.  The procedure brought about an excessively large lesion or number of lesions.  More than one position for the probe was tried and the co-ordinates were not accurately plotted.  The lesions were too far back and caused swelling.  Post-operatively observation of the plaintiff was inadequate and so failed to alert staff to the ill consequence of the operation and the plaintiff was discharged prematurely.  The plaintiff had large subhyaloid haemorrhages which indicated that she was likely to have been suffering from cerebral oedema and a degree of raised intracranial pressure in the post-operative period and should not have been discharged until this diagnoses had been excluded.  Had the operation not been performed negligently the plaintiff would not have suffered the damage or extended damage that she did.  The plaintiff cannot particularise further.

(d) - (e)     ...

(f)     failed to exercise reasonable care in the treatment of the plaintiff;  The plaintiff refers to (a), (b), (c), (d) and (e) herein.

(g) - (j)     ..."  (My emphasis.)

4 Paragraphs 9A to 9C of the Further Amended Statement of Claim provide:
"9A   If the plaintiff had received proper advice and been correctly informed, she would not have undergone the surgery on 11th December 1987.

9B     If the defendants had performed the surgery of bilateral cingulotractotomy which the plaintiff at all times thought she was to undergo the plaintiff would not have suffered her injuries, loss and damage.

9C     If the surgery had not been performed negligently, the plaintiff would not have suffered her injuries, loss and damage."

5 Paragraph 10 of the Statement of Claim simply provides that as a result of the negligence of the defendants, the plaintiff sustained personal injury, loss and expense.  Particulars of personal injury follow.
6 It may be that par10 of the Statement of Claim is objectionable for lack of adequate particularity in relation to various aspects, including post-operative care.  Any detail in this respect could, however, be readily rectified by the plaintiff supplying proper particulars. 
7 Ms E A Burford, a solicitor in the employ of the appellant’s solicitors, swore an affidavit which accompanied the application before the learned Master. 
8 In par5 of her affidavit, Ms Burford said that none of the reports of various named specialists consulted in this matter suggest that the plaintiff was given inadequate or inappropriate post-operative care.  By par6 of the same affidavit, Ms Burford said that none of the reports of specialist medical practitioners obtained by the second and third defendants addressed the issue of the alleged inadequate post-operative care. 
9 Mr Harold Schaeffer, in his report of 13 August 1993 obtained by the plaintiff comments on the plaintiff’s post-operative presentation as follows:
"Mrs Turner suffered some post-operative complications.  It will be observed that she had large subhyaloid haemorrhages which indicate that she was likely to have been suffering from cerebral oedema and a degree of raised intracranial pressure in the post-operative period."

Mr Schaeffer does not conclude that this is the result of the alleged inadequate post-operative care but states:
"It is apparent that the poor result is based upon errors of case selection and possible technical errors and/or both."

10 Dr David Bell, in his report of 12 August 1997 obtained by the plaintiff addresses the issue of alleged inadequate post-operative care as follows:
"As for the post-operative care, I doubt that this is an issue ... So far as the post-operative care is concerned, it seems to me from the notes that the observation may have been inadequate and so failed to alert the staff to the ill consequence of the operation.  That may not have made any practical difference to the outcome.  Once they had produced the excessive lesion, nothing further could be done to ameliorate the affects"

11 In October 1997, Ms Burford was instructed to seek an expert opinion from Mr D Jensen, a neurosurgeon practising in Melbourne, regarding the plaintiff’s allegations.  A covering letter and a number of documents were forwarded to Mr Jensen.  The letter requested as follows:
"Once you have had the opportunity to consider the various documents and the issues raised by the Statement of Claim, we would appreciate it if you would contact us to discuss the matters informally before you proceed to preparing a report.  We would be grateful if any report could be prepared within four to six weeks."

12 On 17 October 1997, Mr Jensen telephoned Ms Burford and recommended that she refer the matter to Dr John Lloyd, a neuropsychiatrist practising in Melbourne. 
13 On 21 October 1997, Ms Burford had a telephone conversation with Dr Lloyd, the substance of which was as follows.  Ms Burford requested Dr Lloyd to consider a number of documents in relation to the plaintiff’s claims including the pleadings and reports from other practitioners.  Dr Lloyd indicated his preparedness to look at the documents and prepare a report and give evidence if necessary.  Arrangements were made for material documents to be forwarded by Mr Jensen’s offices to Dr Lloyd.  She requested Dr Lloyd to telephone her once he had considered the documents so that they could discuss informally Dr Lloyd’s opinion in relation to the issues involved.  Dr Lloyd advised Ms Burford that he would not be in a position to contact her for at least two to three weeks, given the volume of material to be read.
14 In the conversation in question, Ms Burford requested Dr Lloyd not to proceed further with his report until the informal discussion had taken place.  Dr Lloyd indicated that that would be acceptable. 
15 In her affidavit, Ms Burford said that she took the course of action outlined in order to ensure the appellant was not obliged to discover a report which contained opinions which were adverse to the case of the appellant or dealt with issues adverse to the appellant in circumstances in which no report adverse to the appellant on, in particular, the issue of alleged inadequate post-operative care had been put forward by any other party.  It was Ms Burford’s intention, after informal discussion, to obtain her client’s instructions to request Dr Lloyd to proceed with the preparation of his written report. 
16 Ms Burford was of the view that if Dr Lloyd had indicated to her during the course of discussion that his opinion on the alleged post-operative care issue was adverse to the appellant, it would have been her intention to recommend to the appellant that no report be provided by Dr Lloyd.
17 In her affidavit, Ms Burford states that she has had no further discussion since 21 October 1997 with Dr Lloyd.
18 Ms Burford received Dr Lloyd’s report on 10 December 1997.  In it, he made a number of comments adverse to the appellant in relation to the issue of alleged inadequate post-operative care.  In particular, Ms Burford drew attention to two passages in the report.  The first appears on p8 and is as follows:
"I would oppose the view that ‘the outcome was sealed and irreversible’ after surgery (Dr Bell, 12.8.97).  This is not my clinical experience and I suggest would not be the experience of many who have managed patients following surgery."

19 Ms Burford referred to the following further passage appearing on p9 of Dr Lloyd’s report:
"The impression one gains of the post operative course is that observations were made but not always considered important, not acted upon or not picked up as indicative of some intracerebral disturbance. "

20 The appellant does not intend to rely on Dr Lloyd’s report, nor does it intend to call Dr Lloyd to give evidence.
21 Dr Lloyd’s report is relevant to a matter in issue in the present action.  It has come into the possession of the appellant and is liable to be disclosed to the other parties in the action.  The issue of post-operative care is clearly outstanding on the pleadings and is therefore a matter in issue in the action within the meaning of SCR38.01(1) and falls within that rule.  Par10 of the Statement of Claim may lack particularity so far as the question of post-operative care is concerned.  But that is a matter which should be resolved by an application for further and better particulars of the allegation.
22 I have considered the decision of Mullighan J in Piber Pty Ltd v A W Baulderstone Pty Ltd (1992) 163 LSJS 380. Significant changes in this rule have taken place since that case was decided. However, it is still the position, as Mullighan J put it, that ‘a consequence of the present procedure is a disclosure of an expert’s report whilst it is in some respects unfavourable to a party may advance the case of the other party. Tactical withholding of reports is no longer permissible’.
23 An expert’s report becomes liable to be disclosed to the other parties in the action once it comes into the possession or power of the party ordering the report or the possession or power of his or her solicitor.  Under the present SCR38 it is possible, without contravention of the rule, to arrange for an expert to consider the facts upon which an expert’s report is sought with a view to discussing the matter informally with the solicitors for the party ordering the report.  A decision can be made at that time either to proceed with the preparation of the report or to terminate the instructions to the expert so that no report of that expert is brought into existence. 
24 The difficulty here is that the solicitors for the appellant made it perfectly clear that they were to have a discussion with Dr Lloyd in relation to the content of his report before the work of preparing a document was commenced.  Dr Lloyd ignored his instructions,  prepared the written report and forwarded it to the appellant’s solicitors. 
25 In my opinion, even though the report was unwanted, it falls within the language of SCR38.01(1) and (2) and must be disclosed to the other parties in this action.   Relief from that obligation can only be obtained under SCR38.01(4) where the disclosure of the report would unfairly prejudice the appellant in the circumstances.  The disclosure of Dr Lloyd’s report to the other parties in this action may well be prejudicial to the case of the appellant but I do not think that it is unfairly prejudicial.  On the one hand the appellant is being required to make available to the other parties in the action a report which it did not order and does not want.  On the other hand, as the learned Master rightly pointed out, the Court is being asked to use its processes to facilitate the withholding of a relevant expert’s report.  It is being asked to exclude from discovery evidence that is material to one of the issues in question in the action.  In my view, the latter consideration is paramount.  This is not an appropriate case for the grant of relief under SCR38.01(4).
26 For the above reasons the appeal will be dismissed and the order of the learned Master confirmed.  I will hear counsel for the appellant as to what supplementary directions should be made.  I also direct that if the appellant does not pursue an appeal to the Full Court within the time prescribed, a copy of these reasons be supplied to the other parties in the action.