O'Reilly v Western Sussex NHS Trust (No.3) [2013] NSWSC 1644

Supreme Court New South Wales

Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.3) [2013] NSWSC 1644 Hearing dates: 14/11/2013 Decision date: 14 November 2013 Jurisdiction: Common Law Before: Garling J Decision: Report of Professor Tattersall of 30 April 2013 admitted Catchwords: EVIDENCE - expert evidence - admissibility of evidence - whether plaintiff should be permitted to rely on evidence after non-compliance with a court order - interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial - no general point of principle Legislation Cited: Civil Procedure Rules 2005 Category: Interlocutory applications Parties: Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3) Representation: Counsel: Mr Bartley SC / Mr Toomey (P) Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3) Solicitors: Beilby Poulden Costello (P) Kennedys (Australasia) Pty Ltd (D1, D2, D3) File Number(s): 2011/187028

EX TEMPORE JUDGMENT - Late Service of Medical Report 1Mr Bartley SC tenders a report of 30 April 2013 of Professor Tattersall. He accepts that the report was not served in accordance with the orders of the Court. Accordingly, he needs leave of the Court to rely upon it. 2Mr Wilson-Smith QC for the defendant objects to the tender of it. He points out, correctly, that when the issue of the late service of this report and whether or not it was to form part of the plaintiff's case was first raised, Mr Bartley SC for the plaintiff indicated he did not propose to tender it. 3However, after that point in time and after the Court had adjourned the proceedings for a short period, submissions were made about whether the Court should proceed to hear Professor Tattersall's evidence at that time or at some later time. 4Mr Wilson-Smith QC submitted that he needed an adjournment so as he could obtain proper instructions with respect to the late served report of 30 April 2013. 5This necessarily involved consulting with such experts as he wished to and obtaining instructions of his clients. Mr Bartley SC did not oppose an adjournment for that purpose. 6Mr Wilson-Smith QC now objects to the tender of the report upon the basis that it was not served in accordance with the Court's orders and although he has had an adequate opportunity to obtain instructions with respect to it, that was in the context that he did not understand that it would be tendered. 7The issue to be resolved is whether it is better in the interests of justice, that in considering the evidence of Professor Tattersall for the Court to have before it all of the reports of Professor Tattersall in which he expresses various of his opinions or whether it should have some of them and then the Professor is exposed to cross-examination on others, if the defendants so choose. 8It seems to me, and the thrust of the Uniform Civil Procedure Rules 2005, and the Expert Code of Conduct in Schedule 7 to the UCPR is that when expert evidence is being considered by the Court, the Court should have before it, subject to rules of proper admissibility, all of the opinions of experts rather than having some of those opinions. That is because it is fundamentally unfair to a Court to be asked to consider and decide questions where only part of an expert's evidence is admitted. 9I have said before, and I will repeat it again, that the attention to the obligations of the UCPR with respect to Professor Tattersall's reports by the plaintiff's lawyers in this case has been wholly inadequate. 10However, I am obliged to consider what the interests of justice mandate and, in my view, in this case, having regard to the fact that the Court has had an adjournment of a week during which time the defendant has had an opportunity of obtaining adequate instructions with respect to this report, the balance of those interests of justice favour the admission of the report, and I will so admit it.