Supreme Court New South Wales Medium Neutral Citation: Irfan v Western Sydney Local Health District [2023] NSWSC 845 Hearing dates: 17 July 2023 Date of orders: 21 July 2023 Decision date: 21 July 2023 Jurisdiction: Common Law Before: Harrison J Decision: (1) Vacate the hearing of the proceedings scheduled to commence on 6 November 2023. (2) Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the draft annexed to the affidavit of Yevgeny Bagrin affirmed 23 June 2023 and marked "GG". (3) Order that the plaintiff serve the amended statement of claim upon each of the defendants within 14 days. (4) Direct the second defendant to file its defence thereafter in accordance with the rules. (5) Dismiss the plaintiffs' application for leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023 and Professor Bernard Yan dated 22 March 2023. (6) Save to the extent that the parties have otherwise provided for costs by agreement made between or among them, order that the costs of the applications before me be the plaintiffs' costs in the proceedings. (7) Grant liberty to the parties to apply to me by arrangement with my Associate. (8) List the proceedings before me for directions, if required, on Friday 3 November 2023 at 9.30am. Catchwords: CIVIL PROCEDURE – joinder of new party – complex negligence claim regarding treatment of stroke patient – where proposed new defendant ambulance service who responded to plaintiff's deterioration – where hearing already set down, but over the plaintiffs' vigorous objection – where objection to a hearing date in belief that evidentiary picture not yet fully clear – where proposal to join second defendant arises from that belief's vindication CIVIL PROCEDURE – service of new specialist reports – Uniform Civil Procedure Rules r 31.28 – "exceptional circumstances" – substantive question really whether new expert needed to opine on hospital protocol CIVIL PROCEDURE – commentary on nature and purpose of Uniform Civil Procedure Rules Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Uniform Civil Procedure Rules 2005 (NSW) r 1.12, 31.28 Cases Cited: Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 Dickson v State of NSW [2021] NSWSC 234 Hannam v State of New South Wales (No 3) [2022] NSWSC 498 Texts Cited: Practice Note SC CL 07 Category: Procedural rulings Parties: Muhammad Irfan (First Plaintiff) Salva Anwari (Second Plaintiff) Western Sydney Local Health District (Defendant) Health Administration Corporation (Ambulance Service of NSW) (Proposed Second Defendant) Representation: Counsel: D Higgs SC (Plaintiffs) R Cheney SC with T Berberian (Defendant) B Bradley (Proposed Second Defendant) Solicitors: Slater and Gordon Lawyers (Plaintiffs) Norton Rose Fulbright Australia (Defendant) McCabe's Lawyers (Proposed Second Defendant) File Number(s): 2021/337165 Publication restriction: Nil Judgment 1. HIS HONOUR: By notices of motion filed on 13 April 2023 and 22 June 2023, the plaintiffs seek the following orders or relief: 1. Leave to file an amended statement of claim. 2. Leave to join the Health Administration Corporation (Ambulance Service of NSW) as a second defendant. 3. Leave to rely upon the report of Mr Tony Hucker dated 21 June 2023. 4. Leave to rely upon the report of Professor Bernard Yan dated 22 March 2023. 5. Leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023. 1. These applications arise in the following circumstances. Background 1. On 17 May 2020, Mr Irfan presented to the Pacific Medical Centre at Blacktown with a ten day history of shoulder and neck pain. Whilst waiting to be seen by his general practitioner, he deteriorated significantly and called for assistance. He was examined at 12.33 hours, following an ECG 30 minutes beforehand, and was immediately referred to the Emergency Department of the Blacktown Hospital with a possible "CVA". An ambulance collected Mr Irfan from the surgery at 12.45 hours and he arrived at the hospital at 13.18 hours. His condition deteriorated further on the way. At 13.57 hours, he was transferred to a bed and a code blue was activated. 2. Shortly thereafter, Mr Irfan was noted to have what appeared to be a seizure. He underwent a CT scan with spiral angiography at 16.10 hours. The plaintiffs allege that at no point following Mr Irfan's presentation to the hospital was its Stroke Unit, Stroke Team or a neurologist notified or consulted about his condition or symptoms. He was reviewed by Dr Martin, a junior medical officer (neurologist) at 17.03 hours, who concluded that it was likely Mr Irfan had had a "bilateral vertebral dissection with basilar clot". At about 17.12 hours, Dr Martin spoke to Dr Jason Wenderoth, a neurointerventional neurologist. A time critical transfer to Liverpool Hospital was ordered. Mr Irfan arrived by ambulance at Liverpool Hospital at about 19.00 hours and was immediately admitted to the neurology unit. He underwent an endovascular clot retrieval procedure at about 20.55 hours. He remained in the Liverpool ICU for the duration of his admission before being returned to Blacktown Hospital on 22 May 2020 for ongoing ICU management. He remained there until 15 June 2020. 3. These proceedings were commenced by statement of claim filed on 26 November 2021. The plaintiffs allege that Mr Irfan has suffered injuries and disabilities as the result of his treatment at Blacktown Hospital in several respects. These include a failure to diagnose the fact that he was, or may have been, suffering from a stroke, and failure to treat him appropriately in accordance with such a diagnosis in a proper or timely manner, including the administration of an urgent CT head scan and CT angiogram. He similarly also alleges a failure to administer thrombolysis and a failure to carry out timely clot retrieval, among other things. 4. The proceedings came before the Registrar on 4 November 2022. The matter was then set down for hearing commencing on 6 November 2023 with an estimate of three weeks. It is uncontroversial that the allocation of a hearing date was made over the plaintiffs' opposition, whose representative informed the Registrar that it was premature from their perspective to set the matter down for trial. That submission was made in the context that the plaintiffs' legal representatives considered that the full extent of the factual background had not by then clearly emerged, that interrogatories were foreshadowed as a means of discovering more about Mr Irfan's treatment and that there was a prospect that further evidence might need to be served when the full picture was known. 5. Despite attempts to glean more information, including the service of a notice to produce issued to the defendant on 17 December 2022 and a letter sent the following day seeking a response from the defendant's legal representatives concerning the possibility of interrogatories being administered, no progress was made. Mr Bagrin, the plaintiffs' solicitor, described his position at that time in his affidavit affirmed on 23 June 2023, in these terms: "Given the defendant's position in respect of the proposed interrogatories and the outstanding documents sought under the notice to produce served on 17 November 2022, I was concerned that I had been unable to obtain all of the relevant information about the first plaintiff's management during the evolution of his stroke. I decided to approach experts to determine whether they could provide opinions about the events from when the first plaintiff attended the GP until his ECR at Liverpool Hospital, based on the information that was then available." 1. Thereafter, on 12 January 2023, Mr Bagrin sent a letter of instruction to Dr Ron Brooder, a neurologist and on 23 January 2023 sent a letter of instruction to Professor Bernard Yan, a neurointerventionist. Reports from these specialists were later received and are referred to later in these reasons. 2. However, before that occurred, Mr Bagrin continued to chase up a response from the defendant's solicitors about what he referred to as the outstanding documents sought by the notice to produce served the previous December. On 13 February 2023, Mr Bagrin filed a notice of motion seeking an order for the administration of interrogatories and production of the documents sought in the notice to produce. Before those issues were resolved, Mr Bagrin sent a letter of instructions to Mr Tony Hucker, a paramedic, in anticipation of a possible joinder of the Ambulance Service as a second defendant. 3. The report of Professor Yan dated 22 March 2023 was served on the defendant by letter dated 28 March 2023. The reports of Dr Brooder dated 2 March 2023 and 31 March 2023 were served on the defendant by letter dated 3 April 2023. The plaintiffs filed the notice of motion on 13 April 2023 that included prayers for leave to rely upon these reports. 4. Thereafter, in circumstances that I consider should be favourably noted as evidence of commendable professional cooperation between experienced medical negligence litigation lawyers, the parties reached an informal arrangement to exchange evidentiary statements with a view to possibly obviating the need for formal resolution of the issue concerning the administration of interrogatories. On 16 May 2023, the defendant's solicitor wrote to Mr Bagrin maintaining that the defendant would serve its evidentiary statement by the end of July 2023. Mr Bagrin served the plaintiffs' evidentiary statements by letter dated 17 May 2023. 5. On the same day, Mr Bagrin wrote to the defendant's solicitor serving a fresh notice to produce. The terms of that letter are as follows: "I refer to your letter dated 2 March 2023 raising various issues with our clients' Notice to Produce served on the defendant on 17 November 2022. In order to assist the parties to deal with the matter in a cost effective manner, I am instructed to serve a fresh Notice to Produce confining the documents sought. Please find enclosed, by way of service, the Notice to Produce dated 17 May 2023. I trust this alleviates any further concerns that you may have, and I look forward to receiving the documents sought by 31 May 2023." 1. The documents sought by the notice were described in these terms: "1. The entire, original clinical file for the 17 May 2020 admission of: Name: Muhammad Irfan Date of birth: ** July 1984 Including all records whether handwritten or electronic. 2. Applicable protocols, guidelines and/or policies in place at Blacktown Hospital in May 2020 for the management of suspected stroke presentations. 3. Root Cause Analysis (RCA) reports in relation to the first plaintiff's presentation to Blacktown Hospital on 17 May 2020. 4. Investigative reports prepared or obtained by Blacktown Hospital in relation to the first plaintiff's presentation to Blacktown Hospital on 17 May 2020." 1. The defendant produced the documents in response to that notice under cover of a letter dated 14 June 2023. I do not understand that there is any remaining issue about the adequacy of the defendant's response to that notice. The following day, Mr Bagrin wrote to the defendant's solicitor in these terms: "I refer to your letter dated 14 June 2023 providing the bundle of documents in response to our clients' Notice to Produce served on 17 May 2023. According to the flowchart on page 57, the NSW ambulance had to notify the Emergency Department via BAT call that a potential acute stroke, such as the first plaintiff's case, is enroute with estimated time of arrival so that immediate joint ED senior/medical team assessment is undertaken or the latest within 10 minutes. It appears such notification was not made or at least it is not evident in 'Case Description' on page 9 of the bundle of the documents your client has produced. If this is incorrect, I invite you to provide any documentation evidencing such a call and/or notification. I am instructed to investigate a cause of action against NSW Ambulance regarding the events of 17 May 2020. I expect to receive instructions within the next two weeks to amend the Statement of Claim to join this entity as the second defendant in these proceedings. In the circumstances it would seem to be inappropriate to proceed with the hearing of the Amended Notice of Motion listed on 29 June 2023, as there will be a need to amend the pleadings further to join NSW Ambulance. I take this opportunity to invite your client to reconsider its position in respect to the balance of Amended Notice of Motion, given that joinder of NSW Ambulance would make it difficult to preserve the hearing dates in November 2023 giving your client even more ample time to meet the expert evidence served over two months ago. The plaintiffs propose that prayers 4 and 5 of the Amended Notice of Motion be made by consent, with the balance of the motion dismissed with no order as to costs. The plaintiffs would then file a new Notice of Motion seeking (by consent if possible): 1. to vacate the trial date commencing on 6 November 2023; and 2. for leave to file Amended Statement of Claim potentially joining NSW ambulance." 1. The defendant's solicitor responded by letter dated 21 June 2023 as follows: "We refer to prior correspondence in the above matter. Your letter of 15 June 2023 proposes certain orders and actions to deal with amended pleadings, the potential joinder of a new defendant and your late-served expert evidence, some of which is the subject of your amended notice of motion (ANOM) filed 13 April 2023. Our client recognises that any interlocutory arguments should, if possible, be heard together and at the same time. However, our client does not want any interlocutory applications to imperil the hearing date. Our client will consent to the dismissal of prayers 1, 2, 3 and 6 of the ANOM with no order as to costs. Our client will not consent to orders in accordance with prayers 4 and 5 of the ANOM, pursuant to which leave to rely on the late-served reports of Professor Yan and Dr Brooder is sought. In the absence of any evidence of exceptional circumstances within the meaning of UCPR 31.28(4), and noting that the matter is fixed for trial on 6 November 2023, our client maintains its objection to those reports and to such amendments to the pleadings that incorporate new matters raised in those reports. Any application for leave to amend the Statement of Claim, including to join a new party, should be brought by filing a further ANOM. We would co-operate in any reasonable attempt to have those arguments, and any argument about the amended statement of claim and late-served evidence, heard together. Please let us know your intentions, including as to written submissions on the ANOM, returnable before Fagan J on Thursday 29 June 2023." 1. In the events that occurred, the proceedings came before me for directions on 29 June 2023, when the following orders were made by consent: "1. Prayers 1, 2, 3 and 6 in the Amended Notice of Motion filed on 13 April 2023 are dismissed with no order as to costs. 2. Prayers 4 and 5 in the Amended Notice of Motion filed on 13 April 2023 are to be heard concurrently with the Notice of Motion filed on 22 June 2023. 3. Plaintiffs to notify the proposed second defendant (Health Administration Corporation (Ambulance Service of NSW)) of the Notice of Motion filed on 22 June 2023, by 3 July 2023. 4. The hearing listed on 29 June 2023 be vacated." 1. These remaining matters then came before me on 17 July 2023, when the following things emerged. First, it was uncontroversially accepted that the currently scheduled hearing dates could not be retained if the plaintiffs' proposal to join the Ambulance Service were accepted. Not unreasonably, the Ambulance Service appeared and raised objection to any suggestion that it should be expected to be prepared to go to trial on such short notice. It almost goes without saying in any event that the joinder of a new defendant in complicated medical negligence proceedings a matter of only four months before a three week hearing could rarely occur over the objection of that defendant. Correspondingly, a vacation of the hearing would clear the way for the joinder of the Ambulance Service on appropriate terms. 2. Secondly, the defendant's objections to the proposed amendments to the statement of claim were ultimately not pressed. That approach appeared to me to evince a reasonable and enlightened response to the amendment proposal when regard is had to the terms of the proposed amendments in the context of the pleadings so far. It also accorded with a recognition of the importance of the need to remain cognisant of the overriding purpose in s 56 of the Civil Procedure Act 2005 and the dictates of justice referred to in s 58 of that Act. I hasten to observe, however, that the defendant's concession in relation to the proposed amendments to the pleadings was expressly qualified by a submission that it should in no way be taken as including a related concession that the plaintiffs' proposal to rely on the reports of Dr Brooder or Professor Yan should be accepted. 3. Thirdly, it became uncontroversial that the plaintiffs' proposal to serve and to rely upon the report of Mr Hucker should be permitted if the Ambulance Service were to become the second defendant. The current defendant is hardly a contradictor of that course, having regard to the terms of the report and the target of the opinion. The Ambulance Service, if joined, would also have no grounds upon which to oppose the service of that report for obvious reasons. 4. That left the final and most controversial issue subsisting in the plaintiffs' proposal to rely upon the reports of Dr Brooder and Professor Yan. The defendant maintained that the plaintiffs are required to demonstrate exceptional circumstances before they could rely on these reports, by reason of UCPR 31.28, which provides as follows: 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party-- (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties-- (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied-- (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)." 1. The parties provided detailed and helpful written submissions about this. Plaintiffs' submissions 1. The plaintiffs maintained that the key issue is whether, in dealing with the application for leave, the Court could retrospectively grant an extension of time under UCPR 1.12 to serve the reports (thereby rectifying their service in default of previous orders), or whether leave is now required under UCPR 31.28(4) to "admit" those reports. For leave to be granted under UCPR 31.28(4), the requesting party must show that "exceptional circumstances" apply, whereas this requirement does not arise for the granting of an extension of time under UCPR 1.12. 2. In Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433, Cavanagh J concluded that UCPR 31.28 is not applicable in circumstances similar to the present (albeit in that case where no hearing date had been fixed). His Honour held that on proper construction, UCPR 31.28 goes to the admissibility of expert evidence, which is ultimately a matter for the trial judge. His Honour observed at [23]-[29]: 1. the purpose of UCPR 31.28 is to ensure that each party is aware of the relevant expert reports that will be relied on by the other party well before the hearing. 2. UCPR 31.28(4) applies to an application for leave under UCPR 31.28(3), which concerns admissibility of reports not served in accordance with UCPR 31.28. UCPR 31.28(4) does not concern applications for leave to serve a report contrary to the orders of the Court, nor to applications for an extension of time to serve a report late but before the hearing. 3. consequently, his Honour did not need to consider whether or not there were "exceptional circumstances" relating to late service of the report. 1. Cavanagh J's construction of UCPR 31.28 was adopted by Lonergan J in Dickson v State of NSW [2021] NSWSC 234 at [29]-[31]. Her Honour agreed with the acknowledgment by defendant's counsel that the Court has discretion to extend time for compliance with the rules under UCPR 1.12, and her Honour went on to state: "In any event, to the extent that I needed to conclude that there were special circumstances, in my view the special circumstances are first that the matter is still in the case management phase, the breach and causation aspects have some complexity to them and the reports obtained include relevant information that would assist the court in understanding the issues and practicalities relevant to duty and breach and so those reports should be allowed to be deployed by the plaintiff in the proceedings." 1. Unlike Dickson, a trial date has been set in the present matter. However the other "special circumstances" identified by Lonergan J are applicable to the plaintiffs' claim. There is clear complexity in relation to the breach and causation aspects of the plaintiffs' case, and the reports for which the plaintiffs are seeking an extension of time for service are directly relevant and will be of significant assistance to the Court when considering the issues in dispute. 2. In Hannam v State of New South Wales (No 3) [2022] NSWSC 498 at [7]-[15], Adamson J found it unnecessary to consider UCPR 31.28, or the matters to which Cavanagh J referred in Addison at [29]. Rather, her Honour was not persuaded it was in the interest of justice to allow the defendant to rely on the expert toxicologist report it was seeking to serve, having regard to matters that she was bound to take into account under Part 6 of the Civil Procedure Act 2005. Her Honour observed: 1. the trial was fixed to commence in less than a fortnight; 2. it was considered likely the plaintiff would have significant difficulty obtaining an expert toxicologist report in reply; 3. it must have been plain to the defendant for more than a year that the effects of the plaintiff's intoxication were germane to the issues in dispute; 4. the challenges the defendant had faced in obtaining a toxicologist opinion provided some explanation for the delay but did not overcome the prejudice to the plaintiff in receiving an expert report two weeks before the hearing began; 5. the trial was set down for six weeks, based on the defendant's original estimate and the Court could not readily provide another hearing date shortly if the matter had to be adjourned. 1. In contrast to Hannam, the trial date in this matter is still more than four months away with an estimate of three weeks. The defendant has already engaged experts who can consider the expert reports the plaintiff is seeking to serve, and has the resources to engage other experts if deemed necessary. The reasons for the plaintiffs needing to obtain further expert evidence have only become apparent recently due to the limited information available about the critical events. In the circumstances therefore it is difficult to see what prejudice would be caused to the defendant by granting leave for the plaintiffs to rely on the expert reports of Professor Yan and Dr Brooder. Defendant's submissions 1. The defendant took issue with this analysis. Apart from the contention that the plaintiffs had not established the existence of exceptional circumstances, for the proof of which they bear the onus, the defendant emphasised the following matters. 2. First, the proceedings are at a very advanced stage with a hearing date only four months away. The plaintiffs were ordered by me to serve their lay and expert evidence in chief by 29 April 2022 and any evidence in reply to the defendant's evidence, as to both liability and damages, by 14 October 2022. Evidence in reply was served by the plaintiffs on 13 September 2022 and 7 October 2022. The parties then participated in a mediation on 14 October 2022. It was only after the mediation that the plaintiffs sought to serve additional expert evidence. The plaintiffs' opposition before the Registrar on 4 November 2022 to the allocation of a hearing date was based solely on the fact that they intended to administer interrogatories to "progress the matter further" and that in the absence of interrogatories there was a risk they would proceed to trial on incomplete or misunderstood information. It was submitted that answers to interrogatories would be deployed to clarify factual matters. It was also foreshadowed that if new material facts became apparent then the plaintiffs would need to serve further evidence. 3. In the events that occurred, to which I have earlier referred, interrogatories were not administered. The plaintiffs provide no explanation for the delay in procuring or serving the new reports. The defendant submitted that the absence of an explanation ought to be fatal to the plaintiffs' application. Moreover, it is plain that the plaintiffs' solicitor did not request the new reports until more than five weeks after the matter was set down for trial. No light is shed by Mr Bagrin in his affidavit upon what prompted the plaintiffs to seek additional expert evidence. The defendant maintained in the circumstances that there is nothing about the explanation for the delay in serving the additional expert evidence that establishes "exceptional circumstances" within the meaning of UCPR 31.28. 4. Moreover, the defendant draws attention to Practice Note SC CL7. Paragraphs 31 to 34 provide as follows: 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. (b)… 1. In the present case, the plaintiffs have already served two reports from Associate Professor Raftos, an emergency physician, and two reports from Professor Brew, a neurologist. Both experts address breach of duty and causation. As to the authors of the new reports, Dr Brooder is, like Professor Brew, a neurologist. The defendant is concerned that it remains unclear, and Mr Bagrin offers no explanation, why a report from a second neurologist should be allowed, still less why it is required. Professor Yan is described on his website as "dual-trained as Neurologist and Endovascular Neurointerventionist (a subspecialty which treats acute stroke, aneurisms and arterio-venous malformation)". 2. The defendant further submitted that, although Professor Brew does not similarly describe himself as an "endovascular neurointerventionist", resort to Professor Yan to address the relative merits or otherwise of endovascular clot retrieval versus thrombolysis cannot, in the defendant's submission, be justified upon the basis that Professor Brew lacks relevant expertise. His qualifications and experience, described in his reports, are extraordinarily impressive. Indeed, as the defendants point out, no perceived lack of expertise on clot retrieval appears in any way to have prevented Professor Brew from addressing the very issue in his reports produced thus far. He did not there defer to "interventionists" on the topic or otherwise abstain from comment upon the basis that he lacked relevant expertise. 3. Finally, the defendant expressed concern that if the plaintiffs were permitted to rely upon the proposed additional reports, the defendant's sole medicolegal expert neurologist Dr Krause will be required to meet in joint conference with three experts called by the plaintiffs. The defendant submitted that that would work an obvious unfairness in circumstances where it is likely that the resulting joint report would portray Dr Krause as holding a minority opinion. Discernment 1. Before proceeding further, it is timely to recall one of the principal bases upon which Mr Higgs of senior counsel for the plaintiffs advanced his oral submissions before me. So far, none of the relevant neurological specialists in this case has expressed a view or offered any specific commentary on one of the documents only produced on 14 June 2023 by the defendant in answer to the notice to produce served on 17 May 2023. That document is entitled "Evaluation and Management of patients presenting to Blacktown or Mount Druitt Hospital with Sudden Onset of Neurological Symptoms". The document describes its Purpose in the following terms: "Purpose The purpose of this document is to provide guidance regarding the evaluation, investigation and management of patients presenting to Blacktown or Mount Druitt Hospital with sudden onset of neurological symptoms, which may represent as a Transient Ischaemic Attack (TIA) or stroke." 1. The document proceeds in considerable detail to set out what may be described as a best practice regime or protocol to be followed at these hospitals. It may in due course be relevant to know whether or not, or to what extent, the terms of this document conform to practice more generally applied in New South Wales hospitals or are conversely unique to the hospitals concerned. The expert evidence is currently silent on that question. 2. It is not convenient to include the whole of the document in these reasons. However, part of what it contains says this: "Patients presenting with persisting symptoms and/or signs within 6 hours of onset, even if improving or fluctuating, must be considered potential candidates for reperfusion therapies (thrombolysis and/or endovascular clot retrieval). These patients must be triaged as category 1 or 2, a stroke call activated, the patient allocated a monitored bed, and brought to the attention of ED senior medical staff for rapid assessment (within 10 minutes). If there is no response from the Stroke team or consultant within 5-10 minutes of the stroke page, a call must be made to the Stroke Consultant on call to ensure that he or she is aware of the patient. All patients with possible stroke within 6 hours of symptom onset must have a rapid but focused history and examination performed and fully documented, including speech, language and visual fields and immediate CT brain scan performed. In patients being considered for thrombolysis, the time of onset must be confirmed and inclusion and exclusion criteria should be rapidly checked and documented on the appropriate forms. A National Institutes of Health Stroke Scale (NIHSS) form should be completed, the score tallied, the form retained in the patient's medical records, and the total score separately documented in the patient's electronic medical record. 1. The burden of Mr Higgs' submissions is that Dr Brooder and Professor Yan ought to be given the opportunity to express opinions on this document having regard to their qualifications and experience. However, I am presently unable to understand why Professor Brew is not appropriately qualified to do so. It may be, although I currently doubt, that he ultimately confesses some inability to comment on this document, and that he wishes to defer to someone with the allegedly differing qualifications of someone like Professor Yan. That situation has not yet arisen, if it ever will. In the event that it did, no doubt an application to have someone other than Professor Brew comment upon the protocol document could be made. 2. In my opinion, the plaintiffs' application is not really one to which UCPR 31.28 relates. It is in truth what appears to be an application to rely upon more than one expert in the same field of specialty. Neither a consideration of the expertise of Professor Brew nor the evidence of Mr Bagrin satisfies me that there is any current need to permit the plaintiffs to do so. 3. I should however offer the following comments having regard to the arguments raised in this case. The rules, including UCPR 31.28, should be our servants, not our masters. They are designed to promote fairness, or more particularly so as to avoid unfairness, to all parties in the conduct of litigation. It is significant that updating reports are not covered by the requirement for leave to which the rule refers. It seems to me that a slavish reliance upon the rule ought not be permitted to hijack the debate if all parties are adequately protected from the consequences of reports that the rule indicates otherwise require leave. For example, in the particular circumstances of this case, it will be necessary to vacate the hearing date in order to join the Ambulance Service. Although the orders that I propose render the issue of no further importance, the defendant's need for the protection that the rule provides, only four months from a hearing, has to that extent, and in any event, correspondingly evaporated. Accordingly, the need to consider the questions of a grant of leave or the exceptional circumstances requirement, also recede. In so saying, I am not suggesting that the defendant was not entirely within its rights to be concerned about the plaintiffs' proposal to rely upon additional experts so close to the hearing. 4. In my view, having regard to all of these considerations, the following orders should be made: 1. Vacate the hearing of the proceedings scheduled to commence on 6 November 2023. 2. Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the draft annexed to the affidavit of Yevgeny Bagrin affirmed 23 June 2023 and marked "GG". 3. Order that the plaintiff serve the amended statement of claim upon each of the defendants within 14 days. 4. Direct the second defendant to file its defence thereafter in accordance with the rules. 5. Dismiss the plaintiffs' application for leave to rely upon the reports of Dr Ron Brooder dated 2 March 2023 and 31 March 2023 and Professor Bernard Yan dated 22 March 2023. 6. Save to the extent that the parties have otherwise provided for costs by agreement made between or among them, order that the costs of the applications before me be the plaintiffs' costs in the proceedings. 7. Grant liberty to the parties to apply to me by arrangement with my Associate. 8. List the proceedings before me for directions, if required, on Friday 3 November 2023 at 9.30am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2023