Guerin v Hillier; Netherwood v Hillier; Moore v Pell [2020] NSWSC 1322

Supreme Court New South Wales

Medium Neutral Citation: Guerin v Hillier; Netherwood v Hillier; Moore v Pell [2020] NSWSC 1322 Hearing dates: 22 September 2020 Date of orders: 22 September 2020 Decision date: 22 September 2020 Jurisdiction: Common Law Before: Fagan J Decision: Interlocutory case management orders made Catchwords: CIVIL PROCEDURE – interlocutory applications –notices of motion to limit number of plaintiff expert witnesses Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Luke Netherwood (plaintiff) Jucinta Guerin (plaintiff) Trent Moore (plaintiff) Terrence Hillier (defendant) Malcolm Pell (defendant) Representation: Counsel: J Hillier (plaintiffs) N Chen with N Oreb (defendant Hillier) Z Officer (defendant Pell)

Solicitors: Commins Hendriks (plaintiffs) HWL Ebsworth (defendant Hillier) Holmann Webb (defendant Pell) File Number(s): 2017/00143371; 2017/00149682; 2017/00177434 Publication restriction: No

Judgment 1. The Court's reasons for decision on the notices of motion in each of these matters were given ex tempore on 22 September 2020, at the conclusion of the hearing. The revised reasons appear at [10]-[63] below. The following introductory paragraphs provide the context of the three interlocutory applications, which were similar in each case. 2. The three proceedings are brought by unrelated plaintiffs alleging negligent medical treatment by Dr Hillier, an orthopaedic surgeon. In the third proceeding Mr Moore sues Dr Hillier as second defendant, the first defendant being another orthopaedic surgeon who operated on him. Each of the plaintiffs underwent spinal surgery and each alleges that the procedure performed was not indicated and/or that it was carried out with less than reasonable professional skill. 3. The plaintiffs are all represented by the same solicitors and counsel and Dr Hillier has the same representation in each case. For that reason interlocutory applications in the three matters have been conducted together. There are no common factual issues. The claims have now been fixed for hearing in 2021, on separate dates. 4. The notices of motion were filed by Dr Hillier seeking orders in proceeding to restrict the plaintiff to reliance upon only one expert witness in the field of orthopaedic surgery. The applications invoked s 62(3)(b) of the Civil Procedure Act 2005 (NSW). The relevant parts of s 62 are as follows: 62 Directions as to conduct of hearing (1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made. (2) The court may, by order, give directions as to the order in which questions of fact are to be tried. (3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing— (b) a direction limiting the number of witnesses (including expert witnesses) that a party may call. 1. Dr Hillier's counsel also cited r 31.20(2)(e) of the Uniform Civil Procedure Rules ("UCPR"), which is to the same effect. The following is a relevant extract from the rule: 31.20 Court may give directions regarding expert witnesses (1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings. (2) Directions under this rule may include any of the following— (e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue. 1. On 16 January 2020 the Court re-issued Practice Note SC CL7 – Professional Negligence List, including the following: Expert witnesses 31 The Court is concerned about the number of experts often expected to give evidence in personal injury cases. The practice of having a large number of experts qualified, both medical and otherwise, whose opinions may be overlapping and whose reports either are not used or are of little assistance to the court is costly, time-consuming and productive of delay. 32 Where it is considered that an unnecessary expert has been qualified or is sought to be called to give evidence, the court may: reject the tender of the expert's report; refuse to allow the expert to be called; and disallow any costs incurred in qualifying, in having the expert's report prepared or in calling the expert to give evidence. 33 The Court recognises that the liability aspects of medical negligence claims often involve complex issues as to breach and causation. This may require more than one expert from a party to give evidence on a particular issue or issues. However, where there is more than one expert to give evidence on an issue, the evidence will be given concurrently unless directed by the Court. Particular directions in relation to those issues will be given at an appropriate point in the Directions Hearing. 34 In respect of the quantification of damages for death or personal injury, the following indications may be given: (a) As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to: (i) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and (ii) two experts of any other kind. 1. The clear purpose of s 62(3)(b), r 31.20(2)(e) and the Practice Note is to enable the Court to achieve efficiency and economy, for itself and for the parties, in cases where expert opinion evidence is to be adduced. When a plaintiff serves reports of multiple experts who all express substantially the same opinions, as occurred here, the time required for the defendant's experts to respond is increased; the defendant's experts reports necessarily have to be longer and more expensive; delay is incurred in finding a suitable date for a larger than necessary number of professionals to participate in a conclave; the duration of the conclave is extended and the length of its report is unnecessarily increased; greater expense is incurred in securing the attendance of all of the professional experts at trial and, of course, finding a suitable day within the hearing for all of them to attend and give concurrent evidence is made more difficult. 2. The jurisdiction to make orders of the kind sought by the defendant is procedural and discretionary. It is a broad discretion and common sense dictates that it be exercised largely by reference to whether multiple reports in the same discipline overlap or cover precisely the same ground, and are merely repetitive without adding anything to the expert opinion evidence that will be before the Court. The conduct of these motions illustrates the difficulty of actually achieving the intended economy by utilising s 62(3)(b) and r 31.20(2)(e). Each of these plaintiffs qualified multiple experts in orthopaedic surgery. Ms Guerin served reports of four experts in that field. It is difficult to see why some of these reports were served, where they were repetitive of others, and it is still more difficult to see why reliance upon them was persisted when the motions were filed and the section and rule were invoked. Close to the hearing of the motions the plaintiffs abandoned reliance upon reports of Dr Mehta that had been served in each case. As appears from my reasons below, the plaintiffs' reliance upon some of the other repetitive reports could also have been abandoned without weakening their respective cases. 3. The hearing of all three applications by Dr Hillier occupied most of a day. In part that was because Dr Hillier had proposed in his notices of motion as filed to accept a reciprocal limitation on the number of experts upon whom he would rely but, in the course of the hearing, he retracted that proposal and resisted such a limitation. The result was a protracted interlocutory hearing that may well have occupied the Court for more time than has been saved. Dr Hillier may have incurred more costs in the exercise than he will have saved in relation to the future conduct of the matters. It should not have been necessary for this to be resolved by the Court. The intent of s 62(3)(b) and r 31.20(2)(e) and of the Practice Note is clear. Having regard to the evident purpose of these provisions it should have been possible for the legal representatives on opposing sides of the record to reach agreement about limiting the number of experts, from amongst those whose reports have been served, that would be relied upon throughout the remaining stages of the litigation.