X v Sydney Children's Hospitals Specialty Network & Anor (No 6) [2011] NSWSC 1353

Supreme Court New South Wales

Medium Neutral Citation: X v Sydney Children's Hospitals Specialty Network & Anor (No 6) [2011] NSWSC 1353 Hearing dates: 8 November 2011 Decision date: 10 November 2011 Jurisdiction: Common Law Before: Adamson J Decision: Generally allow evidence to be given by experts who participated in the Joint Conference of Experts, notwithstanding specific objections to their expertise. Reject identified paragraphs of Dr Levy's report dated 2 August 2007 where basis not evident from the report. Catchwords: PRACTICE AND PROCEDURE - Expert evidence Legislation Cited: Evidence Act 1995 (NSW) - s 79 Cases Cited: X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351 Category: Interlocutory applications Parties: - "X" (Plaintiff) - Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant) - Dr Brian Kearney (Second Defendant) Representation: Counsel: - K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff) - M.J. Windsor SC, S.A. Woods (First Defendant) - J.K. Kirk SC, Ms V.A. Thomas (Second Defendant) Solicitors: Paul A. Curtis & Co (Plaintiff) GILD Insurance Litigation (First Defendant) Blake Dawson (Second Defendant) File Number(s): 2002/069388 Publication restriction: Suppression order in respect of Plaintiff

Judgment 1In the course of my determination of objections as to expert medical reports in these proceedings, the question arose whether particular experts had purported to give opinions which went beyond their areas of specialised knowledge within the meaning of s 79 of the Evidence Act 1995 (NSW) and, accordingly, whether I should reject certain paragraphs of their reports on that ground. Objections were made by the Plaintiff and by the Second Defendant on this basis, but because common issues arise, I propose to deal with these objections in a single judgment. 2In an earlier judgment given in these proceedings which concerned whether a joint report prepared by experts retained by the parties in the proceedings ought be admitted into evidence ( X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351), I set out, in summary form, the steps that have been taken in these proceedings to obtain agreement between experts on certain questions, and record where there is no such agreement. I do not propose to repeat the narrative given in that judgment. 3The three groups of expert witnesses as to breach of duty in these proceedings are: paediatricians, paediatric neurologists and paediatric endocrinologists. Obviously there is considerable overlap between these areas of expertise and the boundaries between them are not clearly drawn. Furthermore, paediatricians, in the course of their clinical practice refer and discuss particular patients with other specialists; among them, paediatric neurologists and paediatric endocrinologists. Although care must be taken not to import standards applicable to a paediatric endocrinologist or a paediatric neurologist to a general paediatrician, there is no particular reason why other specialities might not give admissible evidence in the instant case about matters in issue. 4However, there is, in the instant case, an additional reason why I am loath to reject the evidence of, say, a paediatrician on, for example, the effect of a stress reaction to a seizure in a child with hyperinsulinism to raise the blood glucose level and rectify the hypoglycaemia which caused the seizure, although this may not fall within the paediatrician's core expertise. The reason is that ten experts have conferred in the preparation of two joint reports, the second of which has been admitted into evidence. The questions raised by the joint reports span the three specialities referred to above, and yet, except in instances where an expert may have refused to participate in the discussion on the grounds that it fell outside his or her expertise, all of the experts have participated in the discussion. 5This process was authorised by this Court. I am informed by Mr Kirk, senior counsel for the Second Defendant, that the Plaintiff, at an earlier stage, sought a direction that particular experts be permitted only to answer particular questions, as opposed to all experts being free to contribute to the discussion relating to every question agreed by the parties to be put to them in a joint conference. The direction was, apparently, refused. 6Where experts have contributed to a discussion which has produced the Second Joint Report and will be called to give concurrent evidence in this Court, there appears to me to be a deal of artificiality in limiting the expression of opinion in the experts reports to that which falls squarely within the expertise of the expert. 7I do not propose to set out every objection made by the Plaintiff and the Second Defendant for the purposes of these reasons. Rather, I will set out examples of the material objected to, since my reasons for allowing the evidence, are principally those set out above.