Supreme Court New South Wales Medium Neutral Citation: Wilson v St Vincent's Hospital Sydney (No 2) [2015] NSWSC 406 Hearing dates: 9 April 2015 Date of orders: 09 April 2015 Decision date: 09 April 2015 Jurisdiction: Common Law Before: Campbell J Decision: I make the following directions: Direct the plaintiff to attend a medical examination with Dr Neil Simon, consultant neurologist, at a time to be fixed on 21 April 2015. She is also to submit to nerve conduction and nerve ultrasound studies of a non-invasive nature. Dispense with the requirement for the expert nurses to confer for the production of a joint report. Direct, subject to the discretion of the trial judge, that their evidence is to be given concurrently at the trial. The conclave of liability experts is to be held by 9 July 2015. The conclave is to be moderated by an experienced lawyer who will chair the conference and act as secretary to the conclave for the purpose of the preparation of the joint report. Joint report to be provided by 9 August 2015. The parties are to confer and agree upon the final form of the questions to be considered by the experts in conclave, the identity of the moderator, and those experts who must attend in person and those who may participate by telephone because their contribution is likely to be limited. Liberty to apply on three days' notice to my Associate. Such liberty to be exercised, if at all, by 9 May 2015. List the matter at 9am on 20 May 2015 before the Common Law Registrar for the purpose of fixing a hearing date and for directions as to the exchange of lay evidence. The costs of 30 March 2015 and of today are the parties' costs in the cause. Catchwords: PROCEDURE – civil – interlocutory orders – case management – whether the plaintiff should undergo additional medical examination – directions for expert conclave COSTS – interlocutory decision – costs in the cause Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Wilson v St Vincent's Hospital Sydney [2015] NSWSC 371 Category: Procedural and other rulings Parties: Rebekah Wilson (Plaintiff); St Vincent's Hospital Sydney (Defendant) Representation: Counsel: P.W. Bates (Plaintiff); G.M. Gregg (Defendant) Solicitors: File Number(s): 2013/037269 EX TeMPORE Judgment (REVISED) 1. This matter came before me last week in my then capacity as the Common Law Duty Judge. 2. The context of the dispute was a motion brought by the defendant seeking orders the plaintiff submit to further examinations under Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW). 3. For the reasons I gave last week, (Wilson v St Vincent's Hospital Sydney [2015] NSWSC 371) I ordered the plaintiff to attend a vocational capacity assessment and to make herself available for an occupational therapy assessment in her own home. 4. I did not at that time accede to an application that the plaintiff submit to a further neurological examination because I was not satisfied on the material I then had that a further neurological examination was justified. 5. Mr Gregg reminds me that although I referred to a further neurological examination, there had been no examination of the plaintiff by a neurologist up until now. Rather the defendant has had the opinion of Dr Neil Simon, a neurologist, in relation to liability issues. That expression of opinion was undertaken without the benefit of a medical examination. 6. I stood the matter over for further directions today to give the defendant the chance to put some further evidence before me and also for the purpose of giving further case management directions to finalise the process of bringing this matter to trial. 7. The context of that is that the plaintiff had objected to the vocational assessment and the occupational therapy assessment on the basis that the need for those things to be carried out would necessarily delay the completion of other necessary preparations for trial and hence the trial. It was put that these things were being sought at the heel of the hunt for purpose of delay. 8. I am not persuaded, and was not persuaded, that there was any ulterior motive behind the defendant's application, but I accepted that the plaintiff's concern about continuing preparations was genuine and that there was a need to keep the matter on the boil, as it were, so that these further examinations would not "derail" the case. 9. For that reason I brought the matter back today. In the meantime the parties have provided further submissions in relation to the neurological examination and also proposed questions for an experts' conclave on the liability issues. 10. Mr Gregg tendered a report of Dr Simon of 5 April 2015, the contents of which satisfy me that it is reasonable for the defendant to have a neurological examination at this time. Essentially his opinion is that if the plaintiff suffered an ulnar neuropathy as a result of the medical procedure she was subject to, it is unnecessary to detail it. It should have been a short lived event, or self-limiting in nature. The purpose of the examination is to ascertain whether the plaintiff still suffers from that condition as she alleges and to assess her alleged condition of what is now referred to as chronic regional pain syndrome. 11. I accept that it is reasonable for the defendant to have a further opportunity to have a neurological examination. I put it that way because, as Mr Bates points out, there has probably been plenty of opportunity in the past for such an examination to be undertaken. 12. In circumstances where I am now satisfied that the neurological examination can be had soon, and that arrangements can be made for conclaves of experts in the meantime, there need be no unnecessary delay to the finalisation of preparations for trial. I propose to allow the medical examination as well as making directions in relation to further preparations. 13. As the transcript of this lengthy directions hearing will demonstrate, there has been full discussion with counsel as to what is necessary in relation to arranging the joint conference of experts. I will not repeat what was said in argument. The thinking of the parties, and my own, will be clear enough for anyone concerned from a careful reading of the transcript. 14. There are a number of doctors involved in different specialities but it has been agreed that essentially the best approach is for all of them to participate in the one conference provided the conference is moderated by a lawyer experienced in medical negligence litigation. 15. Some experts have only a limited involvement in the liability issues and I think it is satisfactory that they should participate to that limited extent only, and by means of telephone rather than travelling from interstate to attend the conference. But by and large for the reasons discussed during argument, I think most of the experts ought to attend in person and indeed, unless that occurs, the moderator's job will be impossible. 16. It is intended that the moderator will chair the discussion and direct it as efficiently as he or she can. It is also intended that the moderator will act as secretary to the conclave for the purpose of the preparation of the joint report which will need to be signed by each of the participants, some of whom are interstate and I will make directions about that matter shortly. 17. I am informed that there are two expert nurses who have prepared reports on liability issues which have been exchanged. I have not read those reports but I am informed by counsel they are voluminous and that their opinions are, to use an old expression, diametrically opposed. 18. Often when experts who disagree get together and discuss the issues, it is surprising how much agreement can be hammered out in the process of the conclave. But given what counsel have told me about the gulf between these two experts, it seems to me that an attempt to have them reach agreement by directing them to get together to discuss the matter would be, in the expression of Groucho Marx, the triumph of hope over experience. I do not propose to make a direction in that regard. I remain of the view, and counsel agree, that they should give their evidence concurrently at the trial. 19. Before making the directions, I will deal with the question of costs. Mr Gregg argues that the motion should have been unnecessary, that the defendant has been successful in obtaining the orders it sought and that costs should, on the usual basis, follow the event. 20. Mr Bates argues that costs should be costs in the cause. He points out that the plaintiff had a genuine concern about the defendant's motive, even if that concern has proved to be ill founded. He also points out that the time has been used in formulating case management directions in this somewhat complicated case. 21. There is force in the arguments on both sides of the record. It seems to me that most of the time that has been spent before me has been spent on the case management issues rather than expended on the question of whether the defendant should have these examinations. 22. I am persuaded for that reason that the appropriate order is that the costs of 30 March 2015 and of today should be costs in the cause. I make the following directions: 1. Direct the plaintiff to attend a medical examination with Dr Neil Simon, consultant neurologist, at a time to be fixed on 21 April 2015. She is also to submit to nerve conduction and nerve ultrasound studies of a non-invasive nature. 2. Dispense with the requirement for the expert nurses to confer for the production of a joint report. Direct, subject to the discretion of the trial judge, that their evidence is to be given concurrently at the trial. 3. The conclave of liability experts is to be held by 9 July 2015. The conclave is to be moderated by an experienced lawyer who will chair the conference and act as secretary to the conclave for the purpose of the preparation of the joint report. 4. Joint report to be provided by 9 August 2015. 5. The parties are to confer and agree upon the final form of the questions to be considered by the experts in conclave, the identity of the moderator, and those experts who must attend in person and those who may participate by telephone because their contribution is likely to be limited. 6. Liberty to apply on three days' notice to my Associate. Such liberty to be exercised, if at all, by 9 May 2015. 7. List the matter at 9am on 20 May 2015 before the Common Law Registrar for the purpose of fixing a hearing date and for directions as to the exchange of lay evidence. 8. The costs of 30 March 2015 and of today are the parties' costs in the cause. ********** 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: 13 April 2015