June Griffiths by her litigation guardian Deborah Anderson v ACT

1. Before the Court is an application brought by the plaintiff, June Griffiths, by her litigation guardian, Deborah Anderson. June Griffiths is deceased. The proceedings are for medical negligence. They were commenced in 2022 and were due to proceed to a hearing with an estimate of five weeks early last year.

2. However, unfortunately, shortly before the commencement of the hearing, one of the two experts relied upon by the plaintiff, Dr Tomlinson, required urgent heart surgery and was unavailable for cross-examination. In the circumstances, the hearing date was vacated by consent. The plaintiff has since obtained an expert report from a different expert, Dr Englund, dated 8 April 2024 and seeks leave to rely on that report.

3. Leave is required because, under r 1241 of the Court Procedures Rules 2006 (ACT), parties are required to serve copies of expert reports in accordance with any direction made by the court and sub-r 1241(3) prohibits the tender or admission of any expert report that has not been served in accordance with the rule, except with the leave of the court. Sub-rule 1241(4) provides that the court must not give leave under sub-r 1241(3)(a) unless satisfied that there are exceptional circumstances, or the expert report is merely an updated report of an earlier version of a report served in accordance with the rule.

4. The present application being one that concerns a new expert, it is necessary for the plaintiff to establish exceptional circumstances. The basis on which the plaintiff contends that exceptional circumstances are established are the circumstances recited in the affidavit of William McCarthy, sworn 29 April 2024. Mr McCarthy sets out in considerable detail the decision-making processes of the plaintiff following receipt of the information that Dr Tomlinson would be undergoing unplanned cardiac surgery within two weeks before the scheduled hearing date and would be unavailable for six weeks. In particular, the plaintiff kept in contact with Dr Tomlinson throughout that period. On 18 January 2024, Mr McCarthy was informed that the doctor would be recovering from open heart surgery and unavailable for a period of six months.

5. On 30 January 2024, the plaintiff's solicitor contacted Dr Englund explaining that the matter was listed for hearing commencing on 5 February 2024 and that the plaintiff would require the opinion of another vascular surgeon and wished to seek the availability of Dr Englund in due course. He was retained and provided a report in early April 2024.

6. In the meantime, on 23 March 2024, Mr McCarthy deposes that someone from his office emailed Dr Tomlinson reminding him that the hearing that had previously been scheduled for February 2024 had been adjourned and requesting an update as to his condition and ability to participate further in the claim with respect to future conclaves and a hearing. As at the date on which that affidavit was sworn, 29 April 2024, there had been no response to that email. Plainly, however, a considerable amount of time has passed since then and it would have been open to the plaintiff to communicate with Dr Tomlinson more recently to inform the Court of a more updated statement as to his position.

7. There was a telephone conversation with Dr Tomlinson on April 8, 2024, the date on which Dr Englund's report was served, in which Dr Tomlinson was asked whether he would be physically able and recovered enough to participate in a trial in the near future. That reflected a measure of optimism not sustained by the state of the Court’s listings at that time but in any event, it is apparent that it was a sincere inquiry. Dr Tomlinson replied to the effect that he had returned to work at a reduced capacity but would shortly be going on a two-month holiday to get away from work and recover, and that he would be moving to Queensland and would be physically unfit for a hearing for several months. In light of that information, the plaintiff sought the opinion of Dr Englund and served his report on 9 April 2024.

8. The defendant opposes the application principally on the basis that, while the affidavit explains the position up to April 2024, there is no updated information and no evidence on the strength of which the Court could conclude that Dr Tomlinson is now not available.

9. The plaintiff provided an outline of written submissions which sets out the principles in respect of the requirement to find exceptional circumstances, citing the decision of the New South Wales Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]. Those principles are reflected in the decision of this Court in Pryce v Dunlap [2016] ACTSC 338 at [10].

10. The plaintiff relied on the following matters to establish exceptional circumstances. First, that Dr Tomlinson required surgery at the time of the hearing. Secondly, that the defendant had required his attendance for cross-examination and the plaintiff would not have been allowed to rely on his report without leave had the hearing gone ahead as listed, due to his unavailability for cross-examination. Thirdly, that as a result of those circumstances, it was necessary to apply to vacate the hearing. Fourthly, that Dr Tomlinson had informed the plaintiff that he would require extensive rehabilitation and would be moving to Queensland. Fifthly, the fact that he is presently about 74 and is retired or semi-retired, based on the information obtained back in 2024. Sixthly, that as a direct consequence of those circumstances, the plaintiff sought and obtained an opinion from a different expert. The plaintiff notes that the expert expressed an opinion similar to but different from that of Dr Tomlinson.

11. That is a point addressed by Mr Fordham SC in opposing the application. He submitted that the Court should not grant leave in circumstances where the two reports are not put before the Court, to enable the Court to assess whether there is some different motivation underlying the application. The plaintiff, as I understood his submissions, embraced that proposition, submitting that the plaintiff should not have to, “feign ignorance” of the new report, the simple question being whether exceptional circumstances are established.

12. Mr Fordham SC submitted that the plaintiff seeks an indulgence and has not provided sufficient evidence to warrant the grant of leave where all that is known is that the original expert was ill. He submitted that it should not be incumbent on the defendant in those circumstances to meet a different case.

13. I do not think that the Court is required, before being satisfied of the existence of exceptional circumstances, to be satisfied that the original expert served in support of a claim is currently unavailable. It may be accepted that Dr Tomlinson may currently, as at today, be well enough to give evidence. I do not think that possibility forecloses a finding of exceptional circumstances.

14. As is trite, the Court is required in exercising a discretion such as that conferred by r 1241 to have regard to all of the circumstances of the case. The material before the Court, although historical, provides what I regard to be an adequate explanation establishing exceptional circumstances for a plaintiff, who had sailed towards a hearing expecting to be able to call one expert, to instead retain another.

15. Indeed, in my assessment, the plaintiff might have been faced with criticism had she not moved promptly after the first expert became apparently unavailable for a period of some six months to obtain an alternative expert opinion. Suppose the hearing had been able to be listed in April or May of 2024. In those circumstances the Court would have had little patience with a plaintiff who said that they had done nothing to obtain an alternative opinion since the clear unavailability of their original expert, who was intended to be called at the February hearing.

16. I am satisfied that exceptional circumstances are established, and that leave should be granted.

Orders

17. For those reasons I make the following orders: (1) The plaintiff granted leave to rely upon the expert report of vascular surgeon Dr Ray Englund dated 8 April 2024. (2) Costs to be in the cause. (3) By consent, order that pursuant to r 231(4) of the Court Procedures Rules 2006, Debra Anderson (as administratrix of the estate of the late June Griffiths) is substituted as Plaintiff.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: