Perry v Dr Lennox [2012] NSWSC 1391

Supreme Court New South Wales

Medium Neutral Citation: Perry v Dr Lennox [2012] NSWSC 1391 Hearing dates: 31 October 2012 Decision date: 16 November 2012 Jurisdiction: Common Law Before: Harrison J Decision: Grant leave to the plaintiff and the fourth defendant respectively to serve and to rely upon the further reports referred to in their notices of motion filed 23 October 2012 and 25 October 2012. Catchwords: PROCEDURE - expert evidence - UCPR 31.28 - applications by plaintiff and fourth defendant seeking leave to serve and rely on further medical reports - whether prejudicial to interests of other parties - whether exceptional circumstances - leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Robyn Perry (Plaintiff) Dr Haig Lennox (First Defendant) Dr Philip Stephens (Second Defendant) Tamara Private Hospital (Fourth Defendant) Representation: P R Hennessy SC with E G Romaniuk (Plaintiff) G M Gregg (First Defendant) A J Black SC (Second Defendant) J Downing (Fourth Defendant) Edwards Michael Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) TressCox Lawyers (Second Defendant) HWL Ebsworth Lawyers (Fourth Defendant) File Number(s): 2008/289431

Judgment 1HIS HONOUR: Mrs Perry claims damages for personal injuries sustained by her, including lower limb paralysis, which were allegedly caused by a post-operative epidural infusion of analgesia for pain relief following knee surgery on 26 June 2006. Dr Lennox was the orthopaedic surgeon who performed the operation. Dr Stephens was the attending anaesthetist. The operation took place at the Tamara Private Hospital. 2This matter came before me for hearing in March this year. The matter had not concluded after seven days of evidence. A resumption of the hearing is now scheduled to commence in February next year. In the meantime Mrs Perry and the hospital have sought orders by notices of motion that they should be permitted to rely upon further medical reports in support of their respective cases. The defendants oppose Mrs Perry's application. The hospital's application is opposed by Dr Stephens. 3Mrs Perry's amended notice of motion filed 23 October 2012 seeks orders in the following relevant terms: "1. Leave...pursuant to UCPR 31.28(1)(a) for the plaintiff to serve and rely on the reports of: (a) Ms Robyn Quinn dated 23 April 2012. (b) Ms Robyn Quinn dated 8 May 2012. (c) Dr Ian Woodforth dated 6 June 2012. (d) Dr John Raftos dated 4 May 2012. (e) Dr Herkes dated 17 August 2012. 2. Leave...pursuant to UCPR 31.28(1)(a) for the plaintiff to serve and rely upon a further report of Dr Kidd." 4Tamara Private Hospital's notice of motion filed 25 October 2012 is in the following relevant terms: "1. Leave... pursuant to UCPR 31.28(1)(a)... for the fourth defendant to serve and rely upon the following reports: (a) Dr Michael Levitt dated 9 October 2012. (b) Professor Paul Myles dated 14 October 2012, and (c) Professor John Watson dated 24 October 2012." 5These applications have fomented significant disagreement among the parties to these proceedings about the scope and width of Mrs Perry's currently pleaded case. The defendants are concerned that Mrs Perry is illegitimately seeking to expand her case by raising matters of an expert medical nature that bear no relationship to the issues raised on the pleadings so far. Mrs Perry disputes that, although senior counsel appearing for her has constantly hinted that some kind of amendment may be coming. This continues to create unease down the bar table. Quite apart from whether or not Mrs Perry at some time in the future formally attempts to broaden the thrust of her case, the defendants complain now that they will be prejudiced by the admission into evidence of material that was not current when the Mrs Perry and the other parties and their witnesses gave evidence. They assert that they will suffer more than merely presumptive prejudice if Mrs Perry is permitted to rely on these further reports. 6The service of reports in a case such as this is governed by UCPR 31.28 which provides relevantly as follows: "31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other 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)... (3) Except by leave of the court, or the 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... (4) Lave 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)." 7In order to put these matters into context, some examination of the pleadings and the history of this litigation is required.