Supreme Court New South Wales Medium Neutral Citation: McAteer v Stoodley [2018] NSWSC 710 Hearing dates: 17 May 2018 Decision date: 17 May 2018 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [19]. Catchwords: PRACTICE AND PROCEDURE – leave to rely on report of second expert with same specialty to that of expert whose report already served – leave granted because of plaintiff's acquiescence in the defendant's solicitor's conduct PRACTICE AND PROCEDURE – application for leave to amend defence to add limitation defence – no explanation for delay – leave granted as time sufficient for evidence to be prepared for trial Legislation Cited: Limitation Act 1969 (NSW) ss 50C, 50D Category: Procedural and other rulings Parties: Susan McAteer (Plaintiff) Marcus Stoodley (Defendant) Representation: Counsel: R Royle (Plaintiff) S Kalfas SC (Defendant) Solicitors: Stacks Goudcamp (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2016/236135 Judgment – EX TEMPORE Introduction 1. By statement of claim filed on 5 August 2016, Susan McAteer (the plaintiff) brings a claim for negligence against Professor Marcus Stoodley (the defendant), a neurosurgeon, arising from a series of surgical procedures he performed on her. The matter is listed for trial to commence on 18 June 2018. Applications 1. There are two motions for determination before me today. The first is the plaintiff's notice of motion which, following amendment, sought an order that the defendant not be permitted to rely on the expert report of Dr Ralph Mobbs, neurosurgeon, at the hearing of the matter; or, in the alternative, that the defendant be required to choose whether to rely on the report of Dr Andrew Kam or the report of Dr Mobbs. The second motion is the defendant's application for leave to amend its defence to add a limitation defence pursuant to s 50C of the Limitation Act 1969 (NSW). The plaintiff's notice of motion 1. This plaintiff's notice of motion arises from the circumstance that the defendant, after having served an expert report of Dr Kam, a neurosurgeon, dated 30 March 2017, saw fit to serve on 2 January 2018 a report from Dr Mobbs dated 31 October 2017. 2. There were two issues relating to the defendant's reliance on the report of Dr Mobbs. First, Dr Mobbs' specialist qualifications appear to be indistinguishable from those of Dr Kam. Mr Kalfas, who appears on behalf of the defendant, was unable to identify any difference in the expertise of the two neurosurgeons which could explain why they were each qualified by the defendant and why each was asked different questions for the purposes of production of an expert report. Nor was he able to explain why two neurosurgeons had been qualified by the defendant's solicitors. 3. Secondly, on 1 November 2017 the Registrar directed the defendant to complete service of his expert evidence by 30 November 2017. Although Dr Mobbs' report had been received by the defendant's solicitors by that date, it was not served until 2 January 2018. 4. These matters would normally provide a powerful reason to refuse the defendant leave to rely on the report of Dr Mobbs. However, Dr Aliashkevich, the neurosurgeon qualified by the plaintiff, has already responded in written reports to the expert reports of Dr Kam and Dr Mobbs. Moreover, at a directions hearing on 23 April 2018 before the Registrar, orders were made by consent that a liability causation conclave take place between named experts which included both Dr Kam and Dr Mobbs. 5. I consider the defendant's forensic choice to qualify two neurosurgeons to address different questions in this case to be unexplained and regrettable. As the Practice Note SC CL 7 provides, it is undesirable to have a large number of experts qualified whose opinions may be overlapping and who may have the same or similar expertise. Furthermore, the duplication of experts within the same expertise tends to add to the time and cost of the hearing and also any conclave which may occur prior to the hearing. Such duplication has a tendency to subvert the interests of justice. 6. However, notwithstanding my concern about the defendant's forensic conduct, it appears to me that, having regard to the steps taken by the plaintiff to address those two reports, and the plaintiff's acquiescence in the inclusion of Dr Mobbs in the list of participants for the proposed conclave, it would cause more trouble than it is worth now to refuse leave to the defendant to rely on the report of Dr Mobbs. 7. In permitting the defendant to rely on the report of Dr Mobbs I ought not be understood as providing any support to the practice of qualifying more than one expert of the same specialty. I am cognisant of the potential unfairness in a conclave for experts within a single expertise to be outnumbered by those of the other party. However, I am persuaded that the presence of a facilitator will ameliorate any such potential unfairness in the present case. 8. For the reasons I have given, I am disposed to dismiss the plaintiff's notice of motion and grant leave to the defendant to rely on the report of Dr Mobbs in the special circumstances of this case. The defendant's notice of motion for leave to amend the defence 1. The plaintiff opposes the grant of leave to amend the defence to add paragraph [13] in which the defendant alleges that the alleged cause of action did not arise within three years before the commencement of the action and it is barred by "s 18C", which I understand to be an error and should be "s 50C" of the Limitation Act. 2. The first operation performed by the defendant on the plaintiff was performed on 20 September 2012. The statement of claim was filed on 5 August 2016. Section 50C of the Limitation Act provides for a three-year post-discovery limitation period in actions for damages for personal injury. 3. If the amendment is allowed the plaintiff will bear the onus of establishing that she did not discover the matters referred to in s 50D(1) of the Limitation Act until no more than three years before the statement of claim was filed. This will cast an evidentiary burden on the plaintiff, which I expect will require her to give additional evidence-in-chief at the trial. It will also probably require the plaintiff to call her instructing solicitor as a witness, as well as a medical practitioner. Obviously, having regard to the imminence of the trial, it may be that very little notice can be given to the defendant of the evidence that is to be adduced by the plaintiff to discharge this burden. 4. The defendant has provided absolutely no explanation for the delay in pleading the limitation defence. In the absence of any explanation, I infer as a matter of inescapable inference that the defendant's legal advisers have given the matter further thought and have come to the view that such a defence is at least arguable. 5. If I considered that the plaintiff were not in a position to meet the limitation defence in paragraph [13] of the proposed draft amended defence, I would be disposed to refuse to grant leave to amend the defence. However, in my view, there is sufficient time between now and the trial for the plaintiff to prepare the requisite evidence to prove the relevant matters in ss 50C and 50D of the Limitation Act. Obviously, the defendant will not be entitled to the usual notice of any expert evidence on this matter, having regard to its own delay which has had the effect that the plaintiff did not need to prepare such evidence until now. 6. I am satisfied, for the reasons given above, that it is appropriate to grant leave to the defendant to file an amended defence in accordance with the draft which is annexure "A" to the affidavit of Melinda Jane Conry of 3 May 2018, with the correction made to paragraph [13] to delete "18C" and substitute "50C". Costs 1. The plaintiff seeks her costs both of her own notice of motion and the defendant's notice of motion. Mr Royle has submitted that, although the defendant has been successful in that it has obtained the leave it required on both counts, it sought in both respects an indulgence of the court and that it was necessary for the defendant to come to court to seek that indulgence. Mr Kalfas submits that it would be in the interests of justice that the costs of both motions be costs in the cause. 2. Having considered the evidence adduced, the procedural chronology, and the submissions made by the parties, I am persuaded by Mr Royle's submission that it is appropriate, in all the circumstances, that the defendant bear the plaintiff's costs both of the plaintiff's notice of motion filed on 2 May 2018 and the defendant's notice of motion filed on 8 May 2018. Orders 1. For the reasons set out above, I make the following orders: 1. Grant leave to the defendant to rely on the expert report of Dr Mobbs notwithstanding that it was served outside the time provided for in the Registrar's the directions. 2. Dismiss the plaintiff's notice of motion filed on 2 May 2018. 3. Grant leave to the defendant to file an amended defence in the form of the draft annexed to the affidavit of Melinda Jane Conry of 3 May 2018, with the correction made to paragraph [13] to delete "18C" and substitute "50C". 4. Order the defendant to pay the plaintiff's costs of her motion filed 2 May 2018 and the defendant's notice of motion filed on 8 May 2018. ********** 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: 18 May 2018