procedural. Plaintiff's application to qualify additional primary liability experts and to rely on new specialists concerning inpatient billing/attendance was refused; the plaintiff is limited to the four...
Key principles
A plaintiff will not be permitted, at a late stage, to qualify additional primary liability experts where the plaintiff has expressly represented that he had completed service of...
A plaintiff will not be permitted to qualify fresh experts to address an issue (here, surgeon inpatient billing/attendance practices) where the issue can be dealt with by experts...
The Court exercises its case-management discretion to limit expert evidence to that already served where a party has indicated compliance with court directions and further...
Issues before the court
Whether the plaintiff should be permitted, at the stage after service and on representations that liability evidence was complete, to qualify and...
Whether the plaintiff should be permitted to rely upon additional or different expert specialists to challenge the defendant's asserted evidence...
Plain English Summary
The Court refused the plaintiff's late attempt to add more primary expert witnesses and to bring new specialists on the narrow issue of whether the surgeon attended him in hospital post-operatively. The refusal rested on the plaintiff's earlier written representation that his liability expert evidence was complete, which led the defendant to consent to a settlement with the hospital. Allowing new primary experts at that stage would have been prejudicial and unfair. The plaintiff is limited to the four experts already served; supplementary reports from those experts may respond to the defendant's experts. The Court also criticised overly detailed pleading practice in medical negligence claims (see [8], [14], [16]).
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Deep Dive
1,768 words · generated 18/06/2026
What happened
On 8 August 2016 Mr Orford underwent a right hip resurfacing procedure performed by Dr Lyons. Mr Orford was assessed on admission as high risk for venous thromboembolism. He later suffered a postoperative paradoxical embolus resulting in a cerebral infarct and catastrophic fall in hospital, giving rise to a medical negligence claim against Dr Lyons. The pleaded negligence allegations included the failure to prescribe or administer an appropriate prophylactic anticoagulation regime and a failure adequately to supervise or monitor the plaintiff postoperatively, including whether Dr Lyons personally attended the plaintiff between 9 and 15 August 2016 (paras 1–2).
Cited legislation
No linked legislation citations have been extracted yet.
Procedurally, the Court made directions requiring the plaintiff to serve remaining expert evidence by 31 March 2020 and the defendant by 31 May 2020 (para 4). On 1 April 2020 the plaintiff's solicitor confirmed in writing that the plaintiff had complied with the Court's orders and had served his primary liability expert evidence. Relying on that representation, and because none of the plaintiff's then-served evidence implicated the hospital, Dr Lyons agreed to a proposed settlement between the hospital and the plaintiff (paras 4–6). The plaintiff thereafter sought to qualify additional primary liability experts and to rely on further specialist experts, in particular to contest the defendant's position that he had attended the patient postoperatively and to address surgeon inpatient billing practices (paras 3, 9, 10).
Dr Lyons opposed the applications on the basis of prejudice and finality. He produced documents in response to a notice to produce and his solicitors explained that Dr Lyons had charged a surgical fee only and had not charged for inpatient attendances. Dr Solomon, an orthopaedic specialist engaged by the defendant, explained that surgeons commonly do not bill for inpatient post-operative visits and that such visits may not be documented in the medical record because nursing charts and pathways often record routine observations and orders (paras 11–12).
Harrison J refused the plaintiff's applications. The judge concluded that in the circumstances, where the plaintiff had represented that his liability evidence was complete and the defendant had relied upon that representation to conduct a settlement with the hospital, it was too late to permit further primary liability experts (paras 6–8). The judge also refused to allow new experts on the billing/attendance issue, holding that the existing orthopaedic expert could respond and that documentary production did not justify expansion of expert evidence (paras 11–14). The parties were directed to file short minutes of order consistent with those reasons (para 15).
Why the court decided this way
The decision rests on the exercise of the Court's case-management discretion, informed by considerations of procedural fairness and prejudice.
Representation and reliance: The plaintiff represented in writing that he had served all primary liability evidence by the court-imposed deadline (31 March 2020) and confirmed compliance on 1 April 2020 (para 5). Dr Lyons relied on that representation when deciding whether to consent to the settlement with the hospital (para 6). Harrison J treated that representation as significant. Whether or not the defendant suffered more than presumptive prejudice was not determinative; the plaintiff should not be given another opportunity after making the representation and creating reliance (para 8).
Prejudice and finality: Allowing the plaintiff to serve additional primary experts at that late stage would have prejudiced Dr Lyons. The prejudice was concrete: relying on the plaintiff's representation, Dr Lyons agreed to a settlement with the hospital which removed any prospect of contribution from the hospital that might have been relevant had further expert evidence emerged implicating the hospital (para 6–8).
Lack of factual basis for further experts: On the billing/attendance issue, the defendant produced documents and expert explanation (Dr Solomon) that surgeons usually do not bill for inpatient post-operative visits and may not document routine rounds in medical records; nursing charts often record routine observations (paras 11–12). There was no assertion that relevant records existed and had been destroyed. The absence of documentary evidence, together with the availability of an orthopaedic expert already served, meant there was no real need to expand the pool of experts (paras 12–14).
Proportionate case management: The judge emphasised that the plaintiff could respond to defendant experts via the experts already served and that allowing duplication or expansion would be unnecessary and inefficient (para 14). The overarching case-management power supports limiting expert evidence where fairness and efficiency require it.
Before and after state of the law
Before the decision, established principles allowed courts broad discretion to control expert evidence, to limit the number of experts, and to refuse late evidence where it would cause prejudice or disruption to fairness and efficient case management. Orford v Dr Lyons applies those familiar principles to the concrete facts of late representations and consequential settlement conduct.
After this decision, practitioners should understand that:
A clear representation that expert evidence has been completed can have decisive procedural consequences if the opposing party acts on that representation to settle or otherwise alter its position. Courts are prepared to refuse late expansions of expert lists where that reliance has produced prejudice (paras 5–8).
The Court will also refuse to permit new experts on narrow, document-driven issues where the existing expert pool can address the matter and where discovery responses show no factual basis for expecting different expert evidence to be productive (paras 11–14).
This decision reinforces the need for rigour in complying with and making representations about discovery and expert service deadlines.
Key passages with plain-English translation
"In my opinion, Mr Orford should not in these circumstances be permitted to rely upon further liability experts." [8]
Plain English: Because Mr Orford told the other side he had finished serving his expert reports and because the other side relied on that, the Court will not let him add more primary experts now.
"He clearly indicated to Dr Lyons that he had done so. Whether or not Dr Lyons suffered more than presumptive prejudice as a consequence, Mr Orford should not be permitted to have another go." [8]
Plain English: The plaintiff said the expert evidence was complete. Even if the defendant's harm is small, the plaintiff should not get a second chance to add more experts after making that statement.
"A surgeon who performs any surgery ... will visit the patient in the post-operative period ... These visits are not charged for ... part of the routine post-operative care that is included in the surgical fee." (Dr Solomon, quoted) [12]
Plain English: The defendant's expert explains that surgeons often do not bill separately for routine inpatient visits, so the absence of a separate bill does not show the surgeon did not attend.
"For better or worse, Dr Lyons accepts that there are no documents to which he can refer to support his response..." [13]
Plain English: The defendant accepts there are no record entries showing attendance, but says that is consistent with common practice and not proof of non-attendance.
Critique of pleading excess: "A pleading commencing a cause of action alleging a failure to provide reasonable medical care can in my experience rarely, if ever, be enhanced ... by telling the reader that the plaintiff's blood pressure was 125/68 at 10.27pm..." [16]
Plain English: The judge criticises the trend to draft overly long, detail-heavy medical negligence pleadings that add little of legal value.
What fact patterns trigger this precedent
This decision is most directly engaged where:
A party has been ordered to serve expert evidence by a certain date and has given a clear written representation that it has complied with that order.
The opposing party has acted on that representation in a way that materially alters its position, for example, consenting to a settlement with a third party, thereby losing rights of contribution or other procedural advantages.
The party later seeks to add fresh primary expert evidence or new categories of expert evidence that could have been brought by the original deadline.
Documentary production in response to notices to produce reveals no new records and no assertion that records once existed and were destroyed.
The issue sought to be expanded is one which can reasonably be addressed by experts already served.
If those factors are present, courts will be inclined to refuse late qualification of experts to protect fairness and finality.
How later courts have treated it
This judgment is a procedural, first-instance ruling of Harrison J in the NSW Supreme Court. It embodies routine case-management principles. Later courts will treat the decision as an example of the exercise of discretion to refuse late expert evidence where a party has represented compliance and the opposing party has relied upon that representation to its detriment. It is not a novel principle but a factual application reinforcing established practice. Parties and later judges are likely to cite the case where similar procedural circumstances arise, particularly where consent to settlement has been given in reliance on a representation about service of expert evidence. (The judgment itself contains no separate cited authorities and thus functions as a factual application rather than a statement of new law; see the reasons as a template for similar fact patterns.)
Still-open questions
Degree of prejudice required: Harrison J accepted that the defendant may have suffered only presumptive prejudice yet still refused further evidence because of the representation and finality. The decision leaves open the threshold of prejudice necessary in other contexts; whether a lesser reliance will justify refusal will depend on the context.
Remedy where records once existed: The judge noted the forensic balance would differ if the defendant had contended that records were created and then destroyed (para 13). If there were a credible assertion of document destruction, the Court's approach to permitting further expert evidence might change. The case does not explore the evidential or remedial consequences of alleged spoliation.
Boundaries of 'primary' versus 'supplementary' expert evidence: The defendant accepted supplementary reports from previously served experts could be served. The line between permissible supplementary reports and impermissible new primary experts can be fact-specific. The judgment provides guidance but not a formula for the boundary.
Interaction with settlement dynamics: The case highlights that a defendant's consent to a third-party settlement based on an opponent's representation can be decisive. It leaves open questions about procedural safeguards for defendants who might later discover material omissions that motivated the settlement.
Practitioners should therefore be cautious: ensure accurate representations about compliance with directions, preserve rights when settling, and take prompt steps to seek relief if new material emerges shortly after a representation.
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: On 8 August 2016, Matthew Orford underwent a right hip resurfacing procedure performed by Dr Matthew Lyons at a hospital conducted by the second defendant. Mr Orford was assessed on admission as being at high risk for a venous thromboembolism. Despite the fact that the draftsperson of the amended statement of claim has gone to excruciating lengths to disguise what Mr Orford actually alleges and to camouflage what this relatively straightforward case is really about, it eventually emerges that Mr Orford sustained a postoperative paradoxical embolus causing a cerebral infarct causing him to collapse at the hospital and to sustain injury. Mr Orford contends that he was negligently treated by Dr Lyons in that he failed to prescribe or administer an appropriate prophylactic anticoagulant regime to reduce the risk of deep vein thrombosis and embolus. Mr Orford also alleges that Dr Lyons failed adequately to supervise or monitor his post-injury recovery or to observe and treat signs of venous problems.
That later allegation is presently relevant. Mr Orford asserts that Dr Lyons did not attend to examine him between 9 August 2016, the day following his surgery, and 15 August 2016, when he had his catastrophic fall. Dr Lyons does not deny that allegation, declining instead only to admit it, but says in the alternative that Mr Orford was in fact attended by VMOs or by a rehabilitation physician and nursing staff. The determination of whether or not anybody attended Mr Orford during this period, and if so who it was, has become a source of agitated concern for Mr Orford's legal team.
This has produced two related issues. The first is whether Mr Orford should be permitted at this stage of the proceedings, in support of his liability claim generally, to qualify further liability experts in addition to Dr Paul Roy, a cardiologist, Dr Peter Slezak, a physician, Dr Mark Ridhalgh, an orthopaedic surgeon and Dr Peter Conrad, a general and vascular surgeon, upon whose reports Mr Orford already relies. The second is whether Mr Orford should also be allowed to rely upon a different (as yet unspecified) expert medical specialist in order to confront Dr Lyons' experts concerning the allegation that he failed personally to attend upon Mr Orford on the days following surgery.
With respect to the first issue, it should be noted that Dr Lyons' solicitor was notified on 6 February 2020 by the solicitor for the second defendant that a settlement agreement had been reached between the hospital and Mr Orford upon the basis of a judgment in favour of the hospital with no order as to costs. Dr Lyons' solicitor formed the view at that time that he should not consent to the proposed settlement agreement until such time as Mr Orford had completed service of his liability evidence. On 13 February 2020, the matter was listed for directions when the following relevant orders were made:
1. Dr Lyons to inform Mr Orford and the hospital on or before 11 March 2020 what his position was in relation to the entry of the consent judgment between Mr Orford and the hospital.
2. Mr Orford to serve his remaining expert evidence by 31 March 2020.
3. Dr Lyons to serve available expert evidence by 31 May 2020.
Dr Lyons' solicitors emailed Mr Orford's solicitors on 1 April 2020 seeking confirmation that they had completed service of Mr Orford's expert evidence. Mr Orford's solicitor replied the same day, indicating that he had complied with the Court's orders, clearly suggesting that he had obeyed the order requiring him to serve remaining expert evidence by 31 March 2020. In those circumstances, where Mr Orford had confirmed in writing that he had completed service of his primary liability evidence and where none of it implicated the hospital, Dr Lyons agreed to the proposed settlement in favour of the hospital.
Dr Lyons now "strenuously objects" to any order sought by Mr Orford that would permit him to serve any further primary liability evidence. Dr Lyons maintains that there would be actual and significant prejudice to him if that course were allowed. Dr Lyons relied upon the advice from Mr Orford's solicitor that all primary liability evidence had been served when seeking instructions about whether or not to agree to a judgment in favour of the hospital, thereby irrevocably forfeiting any prospect of a claim for contribution from it. Dr Lyons does not oppose Mr Orford serving any supplementary report from a previously qualified and served expert responding to Dr Lyons' expert evidence if that were considered to be necessary. Mr Orford already has opinions from the four specialists earlier referred to and limiting Mr Orford to reports from them will not, in Dr Lyons' submission, cause any prejudice to Mr Orford.
In my opinion, Mr Orford should not in these circumstances be permitted to rely upon further liability experts. I do not know, and Dr Lyons presumably also does not know, what further or other liability issues Mr Orford anticipates or may wish to raise. However, it is now too late for him to do so. He not only agreed to orders that he serve his liability evidence by a certain date, but he clearly indicated to Dr Lyons that he had done so. Whether or not Dr Lyons suffered more than presumptive prejudice as a consequence, Mr Orford should not be permitted to have another go.
The second issue is related. Mr Orford wishes to be permitted to rely upon a different specialist (or possibly specialists) in order to confront the question of whether or not Dr Lyons attended Mr Orford in hospital following his surgery having regard to the evidence upon which Dr Lyons wishes to rely about the billing practices of orthopaedic surgeons for such attendances. Mr Orford wishes to challenge the proposition, if it is advanced, that he was visited by Dr Lyons in hospital following his surgery. Mr Orford maintains that he was never billed for such consultations or attendances and relies upon the fact that Dr Lyons made no contemporaneous note of having done so.
In an attempt to explore this question, Mr Orford issued a notice to produce on 8 July 2020 seeking production by Dr Lyons of the following documents:
1. All records including clinical accounting, Medicare and health insurance records demonstrating Dr Matthew Lyons' attendances on the plaintiff in respect of the period 8 August 2016 to 16 August 2016 at the Mater Hospital…
2. All protocols, guidelines and other documents relied upon by Dr Matthew Lyons in determining anticoagulation and assessment as to the risk of a VTE provided to the plaintiff in the period 8 August 2016 to 16 August 2016.
Dr Lyons produced documents in response to the notice on 20 July 2020. The letter from his solicitors accompanying those documents contained the following notation:
"By way of clarification, we advise the following:
In accordance with usual practice, Dr Lyons charged the plaintiff a surgical fee only. He did not charge for in-patient attendances. We note Dr Solomon has confirm [sic] that this is usual practice for orthopaedic surgeons.
Dr Lyons relied on the ASA Guideline dated September 2016. Although this Guideline was not published until September 2016, it was ratified at the ASA annual scientific meeting on 4 May 2016. Dr Lyons was present at this meeting. Received a copy of the Guideline at this meeting and discussed and agreed on the Guideline at this meeting."
The reference to Dr Solomon was presumably a reference to his opinion provided in his report dated 13 July 2020. It is as follows:
"Thank you for your letter of 13 July 2020 requesting a supplementary report which specifically addresses the issue of billing following a hip replacement.
A surgeon who performs any surgery including a total hip replacement will visit the patient in the post-operative period whilst the patient is in hospital. These visits are not charged for and is [sic] Part of the routine post-operative care that is included in the surgical fee.
There will therefore be no record of any clinical accounting. Medicare and health insurance records would demonstrate that Dr Lyons submitted a bill for each visit when he attended Mr Orford.
As I have mentioned in my previous report, it is routine practice at the Mater Hospital for doctors to do their post-operative rounds without necessarily documenting their rounds in the medical records as there is a standard day to day clinical pathway progress chart that the nursing staff would complete and that would often indicate the doctor's orders.
The lack of billing for an inpatient attendance does not indicate that the surgeon did not visit the patient. As mentioned above, no surgeon will bill for post-operative inpatient visits."
By letter dated 21 July 2020, Mr Orford's solicitors expressed incredulity that there was no record produced showing Dr Lyons' attendances on him in the relevant August 2016 period or that his clinical notes did not also include a reference to such attendances. They continue to maintain that the response to the notice to produce must be incomplete. Precisely why Mr Orford's solicitors have become so concerned about this is unclear to me. At present, Mr Orford says Dr Lyons did not see him following his operation. He will presumably say so in evidence. If he is believed, then that presumably is the end of the matter. As I have observed, Dr Lyons has not denied the allegations that he did not visit Mr Orford as an inpatient but has merely not admitted them. Moreover, for better or worse, Dr Lyons accepts that there are no documents to which he can refer to support his response: Dr Lyons merely relies upon a standard or common practice that no such documents would have been produced, either in the form of a diary or clinical records or in the form of his memoranda of fees. In the circumstances I find it difficult to understand why Mr Orford wishes to explore the matter further. The forensic balance may have been different if Dr Lyons had contended that he had made a record of his attendances but that the records had been destroyed.
In summary, I see no reason why Mr Orford should be permitted to qualify a further expert to deal with the billing/clinical notes issue, or indeed any issues raised in the opinions of experts upon whom Dr Lyons proposes to rely. This is particularly so having regard to the representation from Mr Orford's solicitors indicating that his liability evidence was complete. Moreover, one of Mr Orford's experts is an orthopaedic surgeon. I fail to understand why that doctor cannot provide a specific response to the opinion offered by Dr Solomon concerning billing practices adopted generally by orthopaedic surgeons for post-surgical inpatient attendances. Mr Orford should be permitted to rely on such evidence in response to Dr Lyons' liability experts as he may be advised but limited to those four experts who have already been qualified by him.
The parties have recently proffered competing timetables for the progress of the proceedings. In the light of my decision, they should now provide my Associate with modified short minutes of order to similar effect but taking account of these reasons.
Finally, and in passing, I wish to make some observations about what regrettably has become the preferred form of statements of claim in medical negligence matters. I apologise to those practitioners who appear regularly in my list who may have heard these comments before. More often than not these days, those who charge fees for preparing statements of claim seem to be inspired by the erroneous perception that they should start with the day that the plaintiff first attended his or her doctor and that they should thereafter refer in ridiculous detail to every single event that can be extracted from doctors' notes or clinical records or radiological findings or even passing comments by the doctor's receptionist. A pleading commencing a cause of action alleging a failure to provide reasonable medical care can in my experience rarely, if ever, be enhanced, for example, by telling the reader that the plaintiff's blood pressure was 125/68 at 10.27pm, 127/71 at 10.31pm, 122/57 at 10.43pm or that he or she slept uneventfully until woken by the night nurse for a temperature check at 4.00am! It is not uncommon for these cascading adventures in medical history to proceed in this fashion for days or even weeks, staggering endlessly through mind-numbing detail. Undoubtedly a long letter is quicker to write than a short one. I appreciate and accept that the latest edition of Bullen & Leake may be expensive but even a well-worn copy from 30 years ago will more than adequately explain, for anyone in doubt, why I hold these views.
[2]
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: 06 August 2020
Parties
Applicant/Plaintiff:
Orford
Respondent/Defendant:
Dr Lyons
AI Analysis
Outcomeprocedural
Disposition:
Plaintiff's application to qualify additional primary liability experts and to rely on new specialists concerning inpatient billing/attendance was refused; the plaintiff is limited to the four previously qualified experts (Dr Roy, Dr Slezak, Dr Ridhalgh, Dr Conrad) and may rely on supplementary reports from those experts if necessary; parties directed to bring in short minutes of order consistent with the reasons within seven days (see [8], [14], [15]).