Supreme Court New South Wales Medium Neutral Citation: Nemes v South Eastern Sydney Local Health District [2024] NSWSC 1143 Hearing dates: 06 September 2024 Date of orders: 06 September 2024 Decision date: 06 September 2024 Jurisdiction: Common Law Before: Harrison CJ at CL Decision: Application to tender medical report refused Catchwords: MEDICAL NEGLIGENCE – evidence – proposed late tender of medical report – where prejudice to defendant – application refused Category: Procedural rulings Parties: Bendeguz Nemes (Plaintiff - 2019/269249) Erika Nemes (Plaintiff - 2019/250366) Zsolt Nemes (Plaintiff - 2019/250377) South Eastern Sydney Local Health District (Defendant) Representation: Counsel: M Cranitch SC with A Campbell and M Sumerhayes (Plaintiffs) R Cheney SC with B Bradley (Defendant) Solicitors: File Number(s): 2019/269249; 2019/250366; 2019/250377 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: The evidence in these proceedings concluded before me on Wednesday 4 September 2024. In particular, this included intensive sessions of concurrent evidence from three groups of medical specialists who had all participated in conclaves with the benefit of which in each case joint reports were prepared. Emeritus Professor Robert Ouvrier was not included as a participant in the conclave of paediatric neurologists and did not attend as a witness during the paediatric neurological concurrent evidence hearing. 2. Professor Ouvrier provided a report to the plaintiffs' solicitors dated 17 July 2019. The plaintiffs now wish to tender his report. That course is opposed. 3. In support of the application, the plaintiffs rely upon the affidavit of their solicitor, Ray Abbas, affirmed today. Mr Abbas says that Professor Ouvrier has only provided one report. His wife became ill in 2021 and Professor Ouvrier declined thereafter to take on any new matters. The plaintiffs' solicitors ceased using Professor Ouvrier as a court expert at that time. His report has been provided to all other experts in these proceedings. Following the death of his wife, Professor Ouvrier retired from writing medico-legal opinions. 4. Professor Ouvrier proffered the following opinion: "In my opinion, there was significant hypoxia during the labour. There may have been a delay in responding to the abnormalities of the foetal heart rate, but this requires further investigation. Furthermore, there is a variation of the child's genetic make-up (VOUS) which is under investigation by examination of the parental genes initially." 1. Professor Ouvrier expressly disavows obstetric expertise, although he purported to offer that opinion upon the reasonableness of a forceps delivery. 2. The explanation for not employing Professor Ouvrier in the conclave of paediatric neurologists or the concurrent evidence session is not entirely satisfactory. I do not understand the professor to have completely discontinued his medical practice. There is no explanation of why he could not in any event have participated in the conclave of experts or given evidence in the paediatric neurological concurrent evidence session in 2023 or 2024. 3. These are not idle inquiries. Professor Ouvrier's report was prepared some time ago. Its tone is tentative and inquisitive. It leaves open the possibility that Professor Ouvrier was not adamant about all of the views he had formed or the opinions he expressed and that he might have been open to a different view with the benefit of additional information. 4. The exploration of such opinions is the very stuff of concurrent evidence. It is not possible presently to say whether the professor would or might have adhered to his tentative views or would have yielded to those of his colleagues with different views. Whatever the position might have been, the defendant has been denied the opportunity to test his opinions in cross-examination or to have his expertise compared with others of a similar specialty. 5. In these circumstances, the defendant has been denied the opportunity to challenge Professor Ouvrier and that has created a prejudice that cannot be ameliorated. 6. I consider that the plaintiffs' application to tender the report should be refused. ********** 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 September 2024