O'Reilly v Western Sussex NHS Trust (No.5) [2014] NSWSC 555

Supreme Court New South Wales

Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.5) [2014] NSWSC 555 Hearing dates: 08/05/2014 Decision date: 08 May 2014 Jurisdiction: Common Law Before: Garling J Decision: Application by defendants to reopen proceedings refused. Catchwords: PROCEDURE - civil - leave to reopen case; application for - to be permitted to tender additional evidence - four months after conclusion of evidence - course of final submissions - considerations of justice - whether adducing additional evidence would cause prejudice, cost and expense to the other party - whether in accordance with the overriding purpose of the Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3) Representation: Counsel: AJ Bartley SC / D Toomey (P) R 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 1Mr Cheney SC, counsel for the defendants, seeks leave to reopen their case, so as to be permitted to tender the contents of the Death Certificate in respect of the late Dr O'Reilly. He does not read any evidence in support of his application. 2On 22 March 2011, the plaintiffs served the Death Certificate on the defendants. It has been in their possession since that time. 3Pre-trial directions were given in mid-2013 which required the parties to agree upon the preparation of a court book which contained all of the documents to which reference may be likely be made in the course of the hearing of the proceedings, and from which compilation of documents, the parties would then tender such documents as they deemed necessary. The Death Certificate was not included in the court book. 4In October 2013, when Senior Counsel for the plaintiff opened the proceedings he made it plain that the plaintiff's case was that the late Dr O'Reilly died as a consequence of the complications of, and directly relating to, emergency surgery necessitated in 2006 by an obstruction to his bowel. 5The nature of the principal claim made by the plaintiff is one pursuant to the Fatal Accidents Act 1976 (UK). It is convenient to regard it as a compensation to relatives claim. 6It has been apparent for a significant period of time that it is the plaintiff's case that the death of Dr O'Reilly was caused by the negligence of one or other of the defendants by their failure to detect the existence of a lesion present in the left colon of Dr O'Reilly in 2003. 7If the fact was that Dr O'Reilly did not die as a consequence of the negligence of the defendants as claimed by the plaintiff, but rather, as a consequence of the development of metastatic disease which was present prior to his consultations with the defendant, and if that issue of fact was to be relied upon and proved by the defendants, then they should have tendered all of their evidence during the course of the proceedings and in a way which enabled the plaintiff, either in the course of the case in chief or else in reply, to deal with that question by means of further expert evidence. 8The application to tender the Death Certificate arises in the course of final oral submissions, some four months after the conclusion of evidence, in circumstances where, from the Bench, a question has arisen as to what is the evidence which supports the plaintiff's submission that Dr O'Reilly died as a consequence of the complications of the emergency surgery. 9I would freely accept what seems to be implicit in Senior Counsel for the defendants' submissions that the tender of the Death Certificate has been overlooked. However, the question of whether the case should be reopened and additional evidence tendered is a matter that the Court has to consider in accordance with the Uniform Civil Procedure Rules 2005 ("UCPR") and in accordance with the overriding purpose of the Civil Procedure Act 2005. 10Ultimately, any decision which I make, is one which involves the exercise of a discretion, and one which must have regard to the dictates of justice, as that term is used in the Civil Procedure Act and UCPR and also more broadly to the interests of justice generally. 11I am not persuaded that it is in the interests of justice, nor that the dictates of justice require, that the Court exercise its discretion to permit the defendants to reopen the case with respect to this issue. 12Without meaning any disrespect to Mr Cheney's thoughtful application, it is, frankly, too late, having regard to the complexity of this case, for the defendants to seek to adduce evidence on a central issue to which careful consideration has no doubt been given and which ought to have been given in any event. 13The admission of additional evidence at this late stage, without any explanation being given by affidavit or otherwise, would create significant prejudice, cost and expense to the plaintiff. It would also, no doubt, cause additional anxiety to the plaintiff who was entitled to expect that the proceedings, which have been protracted, would be completed today, to await the delivery of judgment. 14I am wholly unpersuaded that it is in the interests of justice grant leave to the defendants to re-open their case. 15The application is dismissed.