Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital Pty Limited t/as Westmead Private Hospital [2022] NSWSC 235

Supreme Court New South Wales

Medium Neutral Citation: Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital Pty Limited t/as Westmead Private Hospital [2022] NSWSC 235 Hearing dates: 4 March 2022 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders: (1) Leave for the plaintiff to serve and rely upon Mr Diment's report dated 12 February 2021 at trial is refused. (2) The plaintiff is to pay the defendant's costs. Catchwords: EVIDENCE – Opinion evidence – Exceptions – Expert evidence – Evidence Act 1995 (NSW) s 79 – Makita v Sporules (2001) 52 NSWLR 705 – Whether evidence is admissible? – Inadmissible Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 31.28, 31.44 and 31.37 Evidence Act 1995 (NSW) s 79 Cases Cited: Makita v Sporules (2001) 52 NSWLR 705 Category: Procedural rulings Parties: Mary Perera (Plaintiff) Alpha Westmead Hospital Pty Limited t/as Westmead Private Hospital (Defendant) Representation: Counsel: J. Morris SC with R. Bianchi (Plaintiff) S. Kalfas SC with K. Burke (Defendant)

Solicitors: Bilias & Associates (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2017/374274 Publication restriction: Nil

Judgment 1. By notice of motion filed 21 February 2022, the defendant seeks that the report of Mr Diment dated 12 February 2021 be inadmissible at the substantive hearing or alternatively subject to the plaintiff seeking and obtaining leave to avoid the prohibition provision under r 31.44 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and seeking and obtaining leave pursuant to r 31.28(4) of the UCPR to rely upon Mr Diment's report, the defendant granted leave to qualify a clinical neuropsychologist to assess the plaintiff and provide a report in response to the opinions expressed by Mr Diment. 2. While the plaintiff opposed the orders sought, at the hearing Mr J Morris SC, appearing for the plaintiff, proffered a third alternatively, namely that the portions of Mr Diment's report where he reviews raw data obtained by Dr Lucas be excised. Mr Kalfas SC appeared for the defendant. 3. The plaintiff is Mary Perera. The defendant is Alpha Westmead Hospital Pty Limited t/as Westmead Private Hospital. 4. The defendant relied upon the supporting affidavits of Brit Mainhoff, solicitor, sworn 10 February 2022 ("Brit Mainhoff Aff 10 February 2022") and 18 February 2022. 5. The trial is listed for hearing commencing on 16 May 2022. Breach of duty of care has been admitted.