Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1820

Supreme Court New South Wales

Medium Neutral Citation: Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 1820 Hearing dates: 28 November 2018 Date of orders: 29 November 2018 Decision date: 29 November 2018 Jurisdiction: Common Law Before: Harrison J Decision: The tender of MFI 6 is refused. Catchwords: CIVIL PROCEDURE – leave sought to tender research paper – where research paper not referred to or considered by the experts in either the individual reports or the joint report – where actual prejudice – leave refused Category: Procedural and other rulings Parties: James Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (Defendant) Representation: Counsel: A J Bartley SC with R Ingram and J A Hillier (Plaintiff) R Cheney SC with J Downing and N Bentley (Defendant)

Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant) File Number(s): 2011/108788 Publication restriction: Nil

Judgment 1. HIS HONOUR: The defendant seeks to tender a learned research paper by Leland Albright and Richard Fellows entitled "Sequential CT Scanning after Neonatal Intracerebral Hemorrhage" published in the March/April 1981 volume of the American Journal of Neuroradiology. The paper is said to be relevant to the question of the diagnosis and assessment of the severity of neonatal ventricular haemorrhage. It is not in issue that James Coffey suffered bilateral ventricular haemorrhages. There is a contest with respect to how his particular radiological findings are to be assessed. 2. The paper in question contains the following passage: "The time necessary for clearance of the hemorrhage fluid from the ventricles was dependent on the severity of the original hemorrhage: ventricular fluid cleared within 7-9 days after a small hemorrhage and within 12-14 days after an extensive hemorrhage." 1. Specialist neonatological experts retained by the parties have opined about the severity of James Coffey's haemorrhages. There is some disagreement about whether or not he sustained a grade 3 haemorrhage or only a grade 2 haemorrhage on his left side. There may be some other less fundamental differences as well. The defendant now wishes to contend, with the benefit of the paper, that the rate at which haemorrhagic fluid cleared from the site of his haemorrhages in this case reliably, or at least arguably, informs their severity. 2. Neither of these experts referred to this issue in the course of their individual reports. It did not appear to arise for consideration at their conclave and does not receive a mention in their joint report. The plaintiff's legal advisers therefore object to the report because it raises a new issue that they contend they cannot meet. 3. I consider that the tender of the paper should be rejected. The experts in the relevant field have chosen to express their individual and joint opinions without reference to the paper in particular or to the importance (or otherwise) of the rate of clearance of haemorrhagic fluid as an indicator of severity in general. The paper precedes the critical events in this case by some 23 years and the opinions expressed in this case by the experts by 37 years. The prospect that some further research on this topic during that time will have been carried out seems high. I have no confidence that more contemporary research since 1981 might not have contradicted or varied or qualified the authors' conclusions in a critical way. The plaintiff's concerns therefore extend beyond merely presumptive prejudice. The inability to explore the current status of the paper's conclusions creates actual prejudice in my view. 4. I originally marked the paper as MFI 6. I reject the defendant's tender of MFI 6.