Supreme Court New South Wales Medium Neutral Citation: Lawrence v Dr Cain [2019] NSWSC 1557 Hearing dates: 7 November 2019 Date of orders: 07 November 2019 Decision date: 07 November 2019 Jurisdiction: Common Law Before: Harrison J Decision: See [17] Catchwords: CIVIL PROCEDURE – expert reports – late filing and service of expert reports – whether determination of admissibility of expert reports should be made prior to, or at, trial – not appropriate to give a ruling or make a finding about the admissibility of first report – plaintiff not entitled to use second report without obtaining leave from trial judge Legislation Cited: Evidence Act 1995 (NSW), s 192A UCPR, 31.28 Category: Procedural and other rulings Parties: Karen Joy Lawrence (Plaintiff) Dr Christopher Cain (1st Defendant) Dr Greg Longfield (2nd Defendant) Dr Stepheno Kim (3rd Defendant) Mid North Coast Local Health District (Kempsey District Hospital) (4th Defendant) Representation: Counsel: Philip Beale with E Chrysostomou (Plaintiff) E Elbourne (2nd Defendant) J Sandford (3rd Defendant) M Gerace (4th Defendant) Solicitors: CMC Lawyers (Plaintiff) Makinson d'Apice (1st Defendant) Barry.Nilsson. (2nd Defendant) Moray & Agnew (3rd Defendant) McCabe Curwood (4th Defendant) File Number(s): 2018/207409 Publication restriction: Nil Judgment 1. HIS HONOUR: By notice of motion filed on 6 November 2019, the first defendant moves the Court for the following orders: "1. In relation to the report of Professor Richard Fox, oncologist, dated 28 October 2019 (served 29 October 2019), the Court make a preliminary ruling pursuant to section 192A of the Evidence Act 1995 that: (a) leave for the plaintiff to rely on the report is refused; alternatively (b) the report is inadmissible as evidence in these proceedings. 2. In relation to the report of Associate Professor Peter Clyne, general practitioner, dated 4 November 2019 (served 5 November 2019), the Court make a preliminary ruling pursuant to section 192A of the Evidence Act 1995 that: (a) leave for the plaintiff to rely on the report is refused; alternatively (b) the report is inadmissible as evidence in these proceedings. 3. In the alternative, pursuant to Reg. 31.25 of the Uniform Civil Procedure Rules 2005, that the questions to be put to the: (a) Oncologist experts at conclave, due to occur at 3.00pm, 7 November 2019, be case managed in relation to the issues to be dealt with in a joint report by those expert witnesses; (b) General Practitioner experts at conclave, due to occur at 10.00am, 8 November 2019, be case managed in relation to the issues to be dealt with in a joint report by those expert witnesses; 4. That the plaintiff pay the first defendant's costs of the motion. 5. Any other order that the Court deems fit." 1. The third defendant has also filed a notice of motion dated 7 November 2019 seeking similar relief as follows: "1. Pursuant to s 192A Evidence Act 1995 a ruling that the opinions contained in the report of Professor Richard Fox, dated 28 October 2019, are not admissible against the third defendant in the proceedings. 2. Pursuant to UCPR 31.25, directions as to the issues to be dealt with in a joint report by the expert oncologists." 1. The reports of Professor Fox and Associate Professor Clyne to which these orders refer were served by the plaintiff in breach of orders made by Hamill J on 29 August 2019. Despite indicating in correspondence that an application for leave to rely upon these reports would be made by the plaintiff, no such application ever materialised. In those circumstances, in the looming shadow of the hearing scheduled to commence before Adamson J on 11 November 2019, the first defendant has applied for advance rulings in order to clarify the question of the plaintiff's entitlement to rely upon those reports in these proceedings. Determination of that question is said to have some urgency, as if in the circumstances it was not otherwise obviously urgent, having regard to a proposed conclave of oncologists scheduled to commence at 3pm today. 2. The plaintiff is a 44 year-old woman who is presently suffering from Stage III adenocarcinoma of her sigmoid colon. Her life expectancy is said to be no better than six months or so. She originally consulted the first defendant, her general practitioner, in June 2010 complaining of left lower quadrant abdominal pain. She continued exclusively to consult the first defendant regularly over the next four years with these, as well as related and expanding, symptoms until 7 March 2014 when she was referred to the second defendant. The first defendant was consulted by the plaintiff again on 14 March 2014 at which time he referred her to the third defendant. The plaintiff was seen by the second defendant on 5 May 2014 and was referred by him for a colonoscopy. The plaintiff was seen by the third defendant on 17 July 2014 at which time the possibility of an endometrial ablation was discussed. The plaintiff underwent that procedure at Wauchope District Hospital at the hands of the third defendant on 23 October 2014. 3. On 21 November 2014, the plaintiff was admitted to the Kempsey District Hospital and was shortly thereafter transferred to Port Macquarie Base Hospital. On 24 November 2014, the plaintiff underwent a sigmoid colectomy and was found to have a large tumour involving the proximal sigmoid colon and several enlarged lymph nodes. Her current condition was diagnosed at that time. 4. Professor Fox is an oncologist. He originally prepared a report dated 17 June 2019, which has been served by the plaintiff. No objection is taken to that report to the extent that the plaintiff proposes to rely upon it in these proceedings. Professor Fox prepared a second report dated 28 October 2019. That report is objected to by all defendants. 5. Associate Professor Clyne is a general practitioner. He was instructed to provide a report for use by the plaintiff on 1 November 2019. He provided his report dated 4 November 2019. That report is objected to by the first defendant. 6. The parties attended mediation on 31 October 2019. It was unsuccessful. The plaintiff contends that it was only following that mediation that it became evident that one of the impediments to settlement of the proceedings was the "diametrically opposing evidence between the plaintiff's expert general practitioner, Dr Lynch and that of the first defendant's general practitioners, Dr Roche and Dr Pearce": see affidavit of Sachini Amarasinghe dated 6 November 2019 at [14]. 7. A significant issue in these proceedings will be the extent to which the earlier diagnosis and treatment of the plaintiff's condition might have led to a better outcome. By reason of the nature of the plaintiff's disease, and the ways in which she contends that the respective defendants breached their duties of care to her, that question of causation must necessarily have been seen from the outset as an obvious and potentially controversial issue in these proceedings. Notwithstanding that fact, Mr Beale of counsel for the plaintiff conceded in response to my inquiry that proof of that issue was dependent upon the opinions expressed by Professor Fox in his latest report. Precisely why that important aspect of the plaintiff's case has not previously been adverted to and dealt with is not something that I am presently required finally to determine. It is sufficient to observe that the prejudice that would be occasioned to the plaintiff if Professor Fox's second report were excluded is fundamental and extreme. 8. UCPR 31.28 is in the following terms: "31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, 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 abridgment 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 expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 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 expert's 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 a report that has been served in accordance with subrule (1)." 1. As already noted, the plaintiff has not made an application pursuant to this rule for leave to rely upon either of the two reports in question. Neither report merely updates an earlier version of a previous report. The plaintiff has not suggested the existence of exceptional circumstances that warrant the granting of leave, assuming for present purposes that it had ever been sought. 2. Counsel for the second defendant referred me to Le v Brown and Ors [2017] NSWSC 162 and Coffey v Murrumbidgee Local Health District [2018] NSWSC 1621. I have had regard to these cases for the purposes of considering the present application. 3. The following matters should be noted. First, although I accept immediately that it is not the relevant test, and without seeking inappropriately to reverse the burden of proof, it seems apparent that the first defendant is unlikely to suffer any fundamental or irremediable prejudice if Professor Fox's second report were to be admitted. The resolution of that issue is not, however, one that I consider can be fairly determined at this stage. I consider in that context that, without wishing or intending to abrogate my responsibility to decide the question, the matter ought in the circumstances of this case be left for the trial judge to consider. There is some prospect that the oncologists might by the commencement of the hearing next week have met in conclave to discuss their respective opinions. It would be surprising to me if the first defendant's expert were not easily able to confront and deal with all of the opinions expressed by Professor Fox in his second report so far as the liability of the first defendant is concerned. 4. Secondly, the preferable setting within which to assess the dispute concerning Professor Fox's second report is in the context of an application by the plaintiff for leave to rely upon it. If the plaintiff chooses to make such an application, it will no doubt be supported by evidence and submissions that deal with the issue of exceptional circumstances. There is no evidence before me of exceptional circumstances to which the plaintiff may wish to direct attention and no submissions about that issue have been provided. If the plaintiff wished to contend that her case was fundamentally flawed by reason of the absence of evidence on the issue of causation if Professor Fox's report were excluded, and that such a predicament amounted to exceptional circumstances (about which proposition I offer no comment), it is also something with which the trial judge will be better placed to deal. 5. Thirdly, the second and third defendants have only recently been added as defendants to these proceedings. The third defendant has not qualified an oncological expert in the short time that has been available. Each of these defendants understandably complains that the prejudice associated with the receipt of Professor Fox's second report is fundamental and incurable having regard to the proximity of the hearing. They similarly maintain that exceptional circumstances have not been shown. 6. Fourthly, with respect to the report of Associate Professor Clyne, the plaintiff has also not sought to establish the existence of exceptional circumstances. Having regard to the fact that the plaintiff has served other evidence from expert general practitioners, that is perhaps unsurprising. 7. Doing the best I can, it seems to me that the first and third defendants' applications with respect to the latest report of Professor Fox should be left for consideration by the trial judge. In that respect, therefore, I consider that in accordance with s 192A of the Evidence Act 1995, it is not appropriate to give a ruling or make a finding in relation to the admissibility or use of Professor Fox's report dated 28 October 2019. With respect to the report of Associate Professor Clyne dated 4 November 2019, I consider that in accordance with s 192A of the Evidence Act 1995, the plaintiff ought not to be entitled to use that report without first obtaining leave pursuant to UCPR 31.28. ************* Amendments 08 November 2019 - Amended to include reference to 3rd defendant's notice of motion. 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: 08 November 2019