Supreme Court New South Wales Medium Neutral Citation: Sandland v Hillier [2023] NSWSC 1208 Hearing dates: 06 October 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Common Law Before: Harrison J Decision: (1) Refuse leave to rely upon the reports of Dr Leigh Atkinson dated 13 September 2023 and 4 October 2023. (2) Order the plaintiff to pay one tenth of the costs of the application before me. Catchwords: PRACTICE & PROCEDURE – professional negligence – medical negligence - directions – medical reports – application for leave to rely upon further specialist medical opinion – whether tendered in reply – leave refused Category: Procedural rulings Parties: Natasha Maree Sandland (Plaintiff) Terence Hillier (Defendant) Representation: Counsel: J Hillier (Plaintiff) M Windsor SC with M Hutchings (Defendant) Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2020/00358998 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: These proceedings are listed for final hearing commencing on 16 October 2023. In advance of that event, the parties sought directions and orders with respect to a series of issues. In the events that occurred, only the following issues remain for determination by me. Dr Leigh Atkinson 1. Dr Atkinson is an expert medical practitioner specialising in neurosurgery, pain medicine and rehabilitation. He examined the plaintiff and provided a report to her solicitors dated 13 September 2023, upon which she seeks to rely. That is opposed by the defendant. That opposition is based upon the case management history of the proceedings, which for present purposes may be summarised as follows. 2. The plaintiff originally qualified Drs Giblin, Hopcroft and Drnda to provide reports. The defendant engaged Drs Dan, Kuru and Turner. On 18 August 2023, Lonergan J granted the plaintiff leave to serve reports in reply to the reports of Dr Dan and Dr Turner by 15 September 2023. Her Honour did not grant leave to the plaintiff to serve reports for any other purpose. However, the plaintiff served Dr Atkinson's 13 September 2023 report two days later notwithstanding. 3. No report from Dr Atkinson had previously been served. For the purposes of providing his opinion, his report suggests that Dr Atkinson was not provided with the reports of Dr Dan or Dr Turner and he did not comment upon them. The defendant contends in those circumstances that Dr Atkinson's report was not, and cannot be characterised as, a reply to those experts. 4. The service of the report has also raised an issue with respect to the organisation of the conclave of experts who are yet to meet in joint session. The defendant objects to the inclusion of Dr Atkinson's participation in that process and the inclusion of his reports for circulation to the other participants. 5. The defendant's submissions in opposition to reception or reliance upon Dr Atkinson's reports raised the following matters. First, the plaintiff's proposed groupings of liability experts did not include Dr Atkinson. Whereas that fact is not determinative of the issue, the defendant appears to draw support from it as an implicit acceptance by the plaintiff that Dr Atkinson should not take part in the proceedings. The plaintiff's position is that the omission of Dr Atkinson from the list is a matter of little or no significance. 6. Secondly, the defendant maintains that Dr Atkinson's 4 October 2023 report is in any event not a report prepared as a response to the defendant's evidence: it is not therefore a report served in reply. For example, Dr Atkinson's report contains the following reference: "1. Would you please advise as to whether there is anything contained in the reports of Dr Dan or Dr Turner upon which you wish to comment. There is nothing contained in the reports of Dr Noel Dan, Neurosurgeon, and Dr Peter Turner, Orthopaedic Surgeon, that I wish to comment on. These reports do not change my opinion expressed in my Independent File Review dated 7 September 2023." 1. Thirdly, and in the same vein, the plaintiff relies upon the affidavit of Amelia Elizabeth Rowe Baker affirmed on 6 October 2023 which relevantly deals with this issue in the following terms: "20. I am informed and believe that on 19 September 2023 and after the orders were made by Lonergan J that my office provided to Dr Atkinson a copy of the reports of Drs Dan and Turner for his consideration. Attempts had previously been made by my office to obtain reports from either Drs Hopcroft (orthopaedic surgeon) and/or Dr Giblin (orthopaedic surgeon) and/or Dr Drnda (neurosurgeon) but due to their practice and personal commitments this had not proved possible… 21. I am informed and believe that on 25 September 2023 Dr Atkinson's agency contacted our firm and stated that Dr Atkinson had reviewed the reports of Drs Dan and Turner and that nothing in those reports caused him to change his opinion as expressed in his report dated 13 September 2023. 22. A further report from Dr Atkinson was received on 4 October 2023 which responds to the reports of Drs Dan and Turner and this was served on 4 October 2023… 24. The plaintiff seeks an order that the plaintiff have leave to serve and rely on the reports of Dr Atkinson dated 13 September 2023 and 4 October 2023." 1. Fourthly, the defendant submits that the reports of Dr Atkinson raise new issues and purport to advance opinions not just in relation to neurosurgery but also pain management. The latter category of expertise is covered by a different expert grouping in this case. 2. Finally, the dispute about the status of Dr Atkinson and his reports has caused some delay in the preparation of the joint liability report for as long as the question of his inclusion or exclusion remains unresolved. Disposition 1. In my opinion, there is no basis on which the plaintiff should be permitted to rely upon the reports of Dr Atkinson. They are not reports in reply: so much is evident form Dr Atkinson's reference to Drs Dan and Turner noted above. Secondly, and for that reason, the reports do not conform to the directions given by Lonergan J with respect to such reports. That is not of course as a matter of universal application the end of the issue. However, in responding to this application, the plaintiff has not suggested that Dr Atkinson is somehow critical to the case she wishes to promote. In those circumstances I am not assisted in the exercise of some discretionary consideration concerning whether or not to permit the reception of Dr Atkinson's reports by evidence or submissions emphasising the substance of Dr Atkinson's opinions. Conversely, I accept that the defendant has not in terms drawn my attention to any prejudice that he asserts he would suffer from the late reception of reports containing or raising new issues, apart from the procedural disruptions associated with convening the conclaves so late in the day. 2. The defendant seeks costs of the applications before me. With the exception of the question about Dr Atkinson's reports, the parties very commendably reached agreement on all other issues. Those other issues were not uncomplicated and would have extended the hearing before me quite considerably if not otherwise resolved. In those circumstances I consider that the plaintiff should pay one tenth of the costs of or incidental to that hearing. Assessment and payment of that costs order should await the conclusion of the final hearing of the proceedings. ********** 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: 11 October 2023