Moss v Coghill [2022] NSWSC 1224

Supreme Court New South Wales

Medium Neutral Citation: Moss v Coghill [2022] NSWSC 1224 Hearing dates: 7 September 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Common Law Before: Harrison J Decision: (1) Direct the plaintiff to submit to a medical examination with Tania Percy, occupational therapist, on 6 October 2022 at 10:00am, to be undertaken at the plaintiff's residence, or as otherwise agreed as to both time and location between the parties. (2) Direct that that the extension of time sought in prayer 2 of the notice of motion be confined to occupational therapy evidence, not any primary quantum evidence. (3) Order that the costs of this application be the defendant's costs in the proceedings. Catchwords: NEGLIGENCE – medical negligence – examination of plaintiff by occupational therapist where plaintiff resides overseas – whether appropriate for examination by additional specialist in Canada or by current specialist by audio visual link from New South Wales Category: Procedural rulings Parties: Tara Moss (Plaintiff) Chris Coghill (Defendant) Representation: Counsel: H Chiu (Plaintiff)

Solicitors: Slater and Gordon (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2019/275366 Publication restriction: Nil

Judgment 1. HIS HONOUR: These proceedings are listed for hearing commencing on 15 May 2023 with an estimate of six weeks. The plaintiff claims damages for negligence alleging a failure to diagnose an injury to her hip sustained in the course of a gynaecological procedure on 25 January 2016. She maintains that the diagnosis of her condition was delayed causing ongoing hip and pelvic pain and associated functional impairment. 2. When the proceedings were commenced, the plaintiff lived in Australia. She has since moved to Canada. Before doing so she was examined on 7 May 2019 by Vanessa Kirkham, an occupational therapist retained by her solicitors. Ms Kirkham's report is dated 21 August 2019. The plaintiff was also examined on 24 June 2020 by Kathryn Caukill, an occupational therapist retained by the defendant. Ms Caukill's report is dated 25 September 2020. 3. The defendant now wishes to re-examine the plaintiff by an occupational therapist in Canada. The defendant does not seek to qualify a different specialist in that field for any reason other than to update the evidence upon which he proposes to rely, having regard to the fact that by the time of the hearing, Ms Caukill's assessment will be 2 years and 8 months old. The plaintiff opposes the application to have her seen by a second specialist in the same field and maintains that she can be adequately examined for the purposes of an updated report by Ms Caukill via video link or similar application. 4. In support of his opposition to that contention, the defendant reads the affidavit of Stacey Marie King sworn on 9 September 2022. It is hardly surprising that the costs either of flying Ms Caukill to Canada or of flying the plaintiff to Australia are disproportionate to the real or perceived disadvantages to the defendant of requiring Ms Caukill to examine the plaintiff by video link or to the plaintiff of permitting the defendant to rely upon a second occupational therapeutic specialist. 5. Part of what the defendant relies upon is Ms Caukill's opinion about remote examinations, about which she said this: "Noting there are claimed changes to Ms Moss' functional status, an occupational therapy re-assessment via audiovisual link will not sufficiently allow for observation of function, including incidental activity, movement patterns, tolerance, endurance, compensatory strategies etc required to formulate independent opinion. Further, the plaintiff is located in a different context. The change in home environment impacts [sic, affects] function and cannot be satisfactorily assessed without an on-site visit to identify suitable options and provide clinical rationale to underpin recommendations. The change in location to Canada also impacts [sic, affects] the assistive technology, systems, services available in this setting." 1. The plaintiff made the following written submissions in response to the defendant's motion. 2. First, although Ms Caukill asserts in her email that re-assessment via audio-visual link is unlikely to provide sufficient information to supplement her original report, she provides no cogent reason for this conclusion. It can readily be accepted that an occupational therapy assessment requires consideration of the person's health condition, environmental factors and personal factors. What remains unclear is why adequate consideration of these factors can only be done in person, given that Ms Caukill has already conducted a thorough assessment and would only be updating her report. The assumption in Ms Caukill's response seems to be that an audio-visual assessment can only be in the form of a fixed-location interview. However, there is no reason why an audio-visual inspection of Ms Moss' environment and her ability to execute tasks could not occur with appropriate assistance 3. Secondly, Ms Caukill was asked to consider the matters set out in the supplementary report of Ms Zweck dated 24 December 2021. Ms Zweck is an occupational therapist qualified by the plaintiff. That supplementary report was prepared after an updated assessment by audio-visual link. Ms Caukill does not address Ms Zweck's apparent ability to conduct an updated assessment in this way. 4. Thirdly, Ms Caukill's inability to comment on the cost or availability of assistive technology and care services in Canada is no barrier. Evidence of applicable rates is not expert opinion evidence. It is typically sourced from publicly available information and often the subject of agreement between the parties by the time of hearing. 5. Fourthly, if the Court permits a second occupational therapist to examine Ms Moss, the plaintiff seek an order that the defendant be permitted only to rely on the evidence of one of his occupational therapists and that the extension of time sought in prayer 2 of the notice of motion be confined to occupational therapy evidence, not any "primary quantum evidence". 6. In my view, the issue is easily resolved. The plaintiff chose to relocate to Canada, a country with which she has a close connection. She was entitled to do so and cannot be criticised for her choice. However, that choice necessarily carried with it some need to adjust expectations about how the litigation might proceed as a result. When balancing the competing contentions on the present issue, it seems to me that the defendant should not be disadvantaged as a consequence of a decision by the plaintiff over which he had no control. In a related sense, I consider that some weight must be given to the defendant's concern, which I am presently able to assess only by reference to Ms Caukill's opinion, that a video conference will not be an adequate substitute for a face-to-face examination of the plaintiff in her own home in Canada. 7. I am also comforted in my conclusion by the fact that the defendant is not obviously securing some forensic or procedural advantage by having the opinions of two experts at his disposal where one expert should suffice: the defendant should not in the particular circumstances of this case be thought to be better off at trial than had he been restricted to reliance upon one occupational therapist in the normal way. 8. The orders that I make are as follows: 1. The plaintiff is to submit to a medical examination with Tania Percy, occupation therapist, on 6 October 2022 at 10:00am, to be undertaken at the plaintiff's residence or as otherwise agreed as to both time and location between the parties. 2. Direct that that the extension of time sought in prayer 2 of the notice of motion be confined to occupational therapy evidence, not any primary quantum evidence. 3. The costs of this application should be the defendant's costs in the proceedings.