District Court New South Wales Medium Neutral Citation: Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140 Hearing dates: 3 February 2016 Date of orders: 03 February 2016 Decision date: 05 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Leave granted to plaintiff to adduce medical report. Catchwords: "Exceptional circumstances" Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Health Insurance Act 1973 (Cth) Motor Accidents Compensation Act 1999 Cases Cited: Australian Securities & Investments Commission v Rich [2005] NSWSC 706 Ho v Professional Services Review Committee No. 295 (2007) FCA 388 R v Kelly (Edward) [2000] 1QB 198 San v Rumble (No. 2) [2007] NSWCA 259 Texts Cited: Uniform Civil Procedure Rules New South Wales Category: Procedural and other rulings Parties: Gulab Khan (Plaintiff) Matthew Rathjen (Defendant) Representation: Counsel: R O'Keefe (Plaintiff) N E Chen (Defendant) Solicitors: Turner Freeman HWL Ebsworth Lawyers File Number(s): 14/157331 Publication restriction: Nil Judgment ON APPLICATION by plaintiff for leave to rely on report of dr peter hay dated 9 march 2015 Introduction 1. The plaintiff sought leave to adduce into evidence the report of Dr Hay dated 9 March 2015. Leave was required as the report had been served late, in breach of a consent order made on 29 July 2014 by the Registrar of the Court, requiring the plaintiff to serve his expert evidence on quantum and liability by 23 September 2014. 2. The application was opposed by the defendant on the basis that the plaintiff had not demonstrated "exceptional circumstances", which were required so as to warrant the grant of leave, and further, that the report constituted a second substantive report by an expert on liability, as, at the time of service, the plaintiff had previously served a report of Dr James Jeong with his Statement of Claim. The defendant relied on an affidavit sworn by Neroli Jane Martin, solicitor, on 1 February 2016, which set out the history of the matter. 3. On 2 February I granted the leave sought, and, with the consent of the parties, deferred delivering my reasons so that evidence in the trial could proceed. These are my reasons. Background 1. The relevant history contained the following chronology: 26 May 2014 – Plaintiff's Statement of Claim filed 29 July 2014 – Consent Orders as to service of evidence, referred to above 21 November 2014 – Defence filed 9 March 2015 – Plaintiff serves report of Dr Hay and defendant solicitor objects by email on ground that the report is served out of time and that the plaintiff already had a peer review opinion from Dr Jeong 30 March 2015 – Mediation takes place 2 April 2015 – Judicial Registrar appoints a hearing date commencing on 1 February 2016 5 November 2015 – Directions Hearing before Judicial Registrar to confirm hearing date. Defendant solicitor seeks order requiring the plaintiff to seek leave to rely on the report of Dr Hay before the hearing, whereas plaintiff's legal representative advises Registrar that the plaintiff proposes to leave the matter to the discretion of the trial judge. 24 November 2015 – Letter from plaintiff's solicitor to defendant's solicitor contending that the report of Dr Hay was a matter to be ventilated at trial. Relevant rules and legislation 1. Part 31, r 17 of Uniform Civil Procedure Rules ("UCPR") provides as follows: "31.17 The main purposes of this Division are as follows: (a) To ensure that the court has control over the giving of expert evidence, (b) To restrict expert evidence in proceedings to that is reasonably required to resolve the proceedings, (c) To avoid unnecessary costs associated with parties to proceedings retaining different experts, (d) If it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court, (e) If it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings, (f) To declare the duty of an expert witness in relation to the court and the parties to proceedings." 1. Part 31, r 28 provides relevantly as follows: "31.28 (1) Each party must serve experts' reports and hospital reports on each active party; (a) in accordance with any order of the court, or (b) if no such order is enforced, 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) An application to the court for an order under subrule (1) (other than an order solely for abridgement or extension of time) may be made without serving Notice of Motion. (3) Except by leave of the court, or by consent of the parties; (a) An experts' report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) Without limiting (a), an experts' report or hospital report, when tendered under s 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) The oral expert evidence in chief of any expert is not admissible unless an experts' report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave 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 the report that has been served in accordance with subrule (1)." 1. Counsel for the defendant further invoked on the hearing, the overriding purposes of the Act the Rules of court has set out in s 56 of the Civil Procedure Act 2005 ("CPA") ("to facilitate the just, quick and cheap resolution of the real issue in the proceedings"), the objects of case management set out in s 57 and the invocation in s 58 of the Act that the court must seek "to act in accordance with the dictates of justice" in any given case. Those separate sections require no repetition here. The defendant's submissions 1. The defendant submitted that Dr Jeong had provided a peer professional report on behalf of the plaintiff in his first report, and in a subsequent report, had responded to the report of Dr Ratner, a GP qualified on behalf of the defendant to provide a peer professional review. That report had been served on the plaintiff on 19 December 2014. 2. It was submitted, first, that Dr Hay had essentially the same qualifications as Dr Jeong, namely, identical qualifications, training and skill, and was therefore not particularly better qualified to proffer an opinion in this case. It was submitted that to have multiple experts addressing the same issue was inconsistent with the objects of the CPA as set out above, although learned counsel conceded that it was not prohibited by the Act and Rules. 3. Secondly, it was submitted that the plaintiff had not made out that this was an "exceptional case", to bring the application for leave within Pt 31, r 28(4). Learned counsel submitted that the expression "exceptional circumstances" should be construed in the same way it was construed by Campbell JA (Beazley and Ipp JJA agreeing) in San v Rumble (No. 2) [2007] NSWCA 259 at [59] to [63]. The case concerned the construction of s 153 of the Motor Accidents Compensation Act 1999, which concerned the power to make costs orders under that Act. The relevant part of s 153(1) provided: "However, the court may make an order that departs from those provisions in an exceptional case and for the avoidance of substantial injustice." His Honour referred to English Court of Appeal's judgment in R v Kelly (Edward) [2000] 1QB 198 at [208], where Lord Bingham of Cornhill CJ said: "We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered." His Honour also referred to the decision of Rares J in Ho v Professional Services Review Committee No. 295 (2007) FCA 388, where at [27] His Honour said, in relation to s 106KA of the Health Insurance Act 1973 (Cth), that the provision which concerned "exceptional circumstances": " … can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional." 1. Thirdly, it was submitted that there had already been a full joinder of issues to be determined in the proceedings between Drs Jeong and Ratner. Finally, it was submitted that there was no basis of the court making any finding that would permit the report of Dr Hay to be adduced pursuant to r 31.17, and that this was a clear case of a party just getting an expert to proffer another opinion on the same issue. It was submitted that the court should not legitimise that practice, and further, that the report did not fall within the category of evidence in reply to the defence relied on by the defendant, pursuant to s 5O of the Civil Liability Act 2002 ("CLA"). Plaintiff's submissions 1. The plaintiff submitted that the consideration of the court should fall into two categories, namely, those procedural matters outlined in Pt 31, r 28, and secondly, substantive matters which would determine the court's discretion. An overarching factor here was that the court has control over expert evidence pursuant to Pt 31 r 17(a), and the appropriate test to be applied is whether the court would be assisted by Dr Hay's opinion. 2. It was submitted that Dr Hay had qualifications by dint of his lengthy experience, which went beyond that of Dr Jeong, and that his experience meant that he was competent to comment on standards of medical practice throughout Australia, so as to respond to the defence raised by the defendant pursuant to s 5O of the CLA. 3. It was submitted by learned counsel for the plaintiff that parts of the report of Dr Hay contained opinions that were slightly different from those of Dr Jeong. 4. Learned counsel further submitted that exceptional circumstances could be demonstrated here, so as to warrant the grant of leave pursuant to Pt 31, r 28. They included the fact that the report had been served on the defendant's solicitors 11 months prior to the commencement of the hearing, providing the defendant with more than adequate time to respond. It was also served before the hearing date was appointed. The defendant had relied on no claim for prejudice by service of the report, and Dr Hay had been required for cross‑examination and was available for that purpose. 5. It was submitted that whilst there was evidence of an ongoing dispute between the solicitors as to the correct mechanism to be used for the leave application to be brought before the court, the court had been apprised of that ongoing dispute by what had transpired before the Judicial Registrar on more than one occasion. It was submitted that the problem that the rule seeks to avoid does not apply in this case, and that the touchstone remained whether the court would be assisted by Dr Hay's evidence. Determination 1. These are proceedings brought by the plaintiff claiming damages for personal injury he suffered as a result of negligent treatment he received from the defendant, who is a general practitioner, on 17 and 25 October 2011. On 16 October 2011, the plaintiff had been the victim of an armed robbery at his place of work at a service station in Five Dock, when an assailant approached him with a knife. The circumstances of the attack are not in issue, namely, that the plaintiff grabbed the knife with his left hand in order to prevent himself from being stabbed. As a result of that incident, the plaintiff suffered lacerations to his left middle finger, and his left ring finger. 2. On 17 October 2011, Mr Khan was taken to the surgery of the defendant by his employer for treatment. What occurred at that consultation, and the following consultation which took place on 25 October 2011, are very much in dispute in the proceedings. Ultimately, that dispute will be resolved by factual findings made by me at the conclusion of the trial. 3. Medical experts on the part of both parties have provided opinions as to liability based, in the case of the plaintiff's experts, on a history given by him to his instructing solicitors, and in the case of the defendant's expert, on a set of assumptions based on the defendant's instructions to his instructing solicitors. Those experts include three hand surgeons: Dr Dilley, who treated the plaintiff, Professor Connolly, who provided a medico-legal report, and Dr Kapila, on behalf of the defendant. Those three doctors gave concurrent evidence before this application. 4. Pursuant to Pt 31, r 28(4) of the UCPR, leave is not to be granted unless exceptional circumstances warrant the granting of leave. I accept the submissions made by learned counsel for the defendant as to how the expression "exceptional circumstances" has been construed in respect of other rules. Part 31, r 28 does not proscribe what may constitute exceptional circumstances, and according to Ritchie's "Uniform Civil Procedure Rules New South Wales", an assessment of whether exceptional circumstances are made out depends on a careful consideration of the facts of each individual case – see [31.28.20]. The learned authors state that "exceptional circumstances" must be understood "in the light of the mandatory directions contained in CPA ss 56-58, the directions power in CPA s 62, and the general discretion, conferred by CPA s 14 (to dispense with the requirements of the rules)". Further, the fundamental consideration in the exercise of the discretion to grant leave is the "just determination of the proceedings" – see Australian Securities & Investments Commission v Rich [2005] NSWSC 706. The learned authors go on to state: "Consequently, principled exercise of the discretion will require consideration of the timing of any disclosure of the report, the reason for late service, the apparent materiality of the evidence, the time available for hearing, the ability of the opposing party to meet the report, and the availability of the expert for cross-examination. The mere fact that the opposing party is aware of the contents of the report is not necessarily sufficient to justify leave being granted to excuse non-compliance with this rule. … On the other hand, exceptional circumstances, sufficient to justify leave may exist where the opposing party is not only aware of the contents of the report, but has had ample notice of its likely tender … and the tender would not give rise to significant prejudice (New South Wales v Tyszyk [2008] NSWCA 107 at [188] – [208]." 1. The following are relevant matters that the court must take into account in determining whether to find exceptional circumstances, and therefore to exercise its discretion to grant leave in respect of the report of Dr Hay. 1. Prior to the report, the defendant had served a report of Dr Ruth Ratner, a general practitioner, proffering opinions based on the set of assumptions referred to above. Those opinions were contrary to those of the plaintiff's expert, Dr Jeong, whose opinions were based on a different history. 2. Dr Ratner concluded that in her opinion, the defendant's management of the plaintiff, "would at the time be widely accepted in Australia by peer professional opinion as competent professional practice". Based on that opinion, the defendant had pleaded a defence pursuant to s 5O of the CLA. 3. Dr Peter Hay, whilst holding the same qualifications as Dr Jeong, is a general practitioner with 28 years experience, and by dint of that experience is qualified to proffer an opinion as to the defence pursuant to s 5O, namely, whether the defendant's management of the plaintiff would be widely accepted in Australia by peer professional opinion as competent professional practice. 4. The proffering of that opinion, necessarily involves Dr Hay in expressing an opinion as to Dr Rathjen's management of the plaintiff on 17 and 25 October 2011, namely, the matters that go to issues of breach of duty of care and causation. 5. The plaintiff served Dr Hay's report prior to the matter being set down for hearing, on 2 April 2015. 6. The defendant has now had 11 months to respond to the report if it chose to do so. The defendant's options in doing so were either to have Dr Ratner respond to the report, or to engage another general practitioner to do so. The defendant made a forensic decision not to do so, but to object to the report without having the matter determined before trial by interlocutory application. 7. Dr Hay was available for cross-examination, and to give concurrent evidence with Dr Ratner and Dr Jeong. 8. Subject to the factual issues to be determined in the case, the medical issues are not overly complex. 1. Applying the principles set out above, it is clear that the defendant had ample notice of the likely tender of Dr Hay's report, and other than give notice of his objection to the report, the defendant did not respond to it. Further, proceedings were set down for hearing after the report was served, and case managed on the basis that the issue would be determined by the trial judge. In my view, all of those circumstances combined amount to exceptional circumstances warranting the grant of leave in this case. This is not a case of late service of a report immediately prior to trial where the defendant has no opportunity to meet it. Further, in finding exceptional circumstances, the court is not giving its imprimateur to parties failing to comply with timetables set by the court for the service of evidence including expert evidence. However, in this case, the defendant had ample time to respond to the report if he chose to do so. His counsel could point to no prejudice to the defendant. 2. I do not accept the submission made on behalf of the plaintiff that the test here is whether Dr Hay's evidence may assist the court. Rather, having regard to the content of the relevant sections of the CPA, and Pt 31 rr 17 and 28 as set out above, it is whether a fair trial can take place, without compromising the interests of justice, by granting the leave sought. 3. In this case, it is necessary to ensure a fair trial of the proceedings, to allow for more than one expert to give evidence on the defendant's management of the plaintiff to ensure that a just determination can be made of the real issues in the proceedings in accordance with the overriding purpose and objects set out in ss 56-58 of the CPA. I therefore find that it is in the interests of justice to exercise my discretion to grant leave to the plaintiff to adduce into evidence the report of Dr Hay dated 9 March 2015. Order 1. I make the following order: 1. That leave be granted pursuant to Part 31, r 28 of the UCPR that the report of Dr Peter Hay dated 9 March 2015 be adduced into evidence. ********** 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: 15 July 2016