Piller v Parkinson

Catchwords: CIVIL PROCEDURE – Court administration – Case management – Practice Notes – whether parties should be permitted to rely upon additional expert reports after time fixed for service – complex breach and causation issues in medical negligence proceedings

Legislation Cited: Civil Procedure Act 2005 (NSW), s 146
Uniform Civil Procedure Rules 2005 (NSW), r 31.28

Cases Cited: Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433
Battersby v Allen [2017] NSWSC 1724

Category: Procedural rulings

Parties: Anita Irene Piller (Plaintiff)
Richard Parkinson (First Defendant)
Bradley Smith (Second Defendant)

Representation: Counsel:
Mr M Neil KC with Mr M Eagle (Plaintiff)
Mr J Downing SC (First Defendant)
Ms K Oldfield (Second Defendant)
Solicitors:
GKE Lawyers (Plaintiff)
HWL Ebsworth (First Defendant)
Avant Law Pty Ltd (Second Defendant)

File Number(s): 2021/293657

Publication restriction: Nil.

Ex Tempore JUDGMENT (REVISED)

1. HIS HONOUR: I am dealing with some significant case management issues in a complex medical negligence case which has been listed for a hearing of three weeks’ duration commencing on 9 November 2026. The plaintiff alleges negligence by the first and second defendants during an extensive spinal fusion operation she underwent on the 12 February 2016. The first defendant is the neurosurgeon who performed the surgery; and the second is the anaesthetist.

2. The neurosurgeon had adopted a minimally invasive technique for the performance of the spinal fusion operation which took six hours. While there are many complexities and many facts (including primary facts) in issue, the substance of the plaintiff’s case is that each defendant negligently allowed the plaintiff to become severely hypotensive and to suffer extensive blood loss during the operation, which resulted in an insufficient blood flow to the optic nerve causing bilateral loss of vision, worse in one eye than the other.

3. The mechanism of injury has been medically described in the evidence in the case as non-arteritic ischaemic optic neuropathy. The surgery is also claimed to have been unsuccessful in the sense that the plaintiff’s pre-existing back pain was markedly worsened.

4. So far as quantum issues are concerned, in addition to those physical injuries, it is asserted that, as a consequence particularly of the loss of vision, the plaintiff’s capacity to continue to deal profitably in Aboriginal art has been lost, and she has suffered a series of falls resulting in other physical injuries including the need for a knee reconstruction. Perhaps unsurprisingly there are psychological sequelae.

5. Two motions are fixed for hearing today. The first is the plaintiff’s motion dated 27 October 2025 seeking leave to rely upon four reports from Associate Professor Dean Cestari, a neuro-ophthalmologist based in Boston, Massachusetts, the United States of America. The expert has academic appointments to Harvard University Medical School. The plaintiff also seeks the exclusion of reports served by the first defendant from Professor Wakefield, an immunologist.

6. The first defendant’s notice of motion dated 29 October 2025 principally seeks an order that the plaintiff submit to blood tests for pathological analysis as requested by Professor Wakefield to further develop the opinion expressed in his reports about causation of the plaintiff’s loss of vision.

7. After discussion with Mr Neil KC, who appears with Mr Eagle for the plaintiff, Mr Downing SC for the first defendant and Ms Oldfield of counsel for the second defendant, both with me in court and amongst themselves out of court, many of the issues have been agreed upon or at least reduced and counsel are to be commended.

8. The substantial issue for my determination remains whether leave should be granted to the plaintiff to rely upon Associate Professor Cestari’s reports. I should also say in that regard that given that remaining issue I didn’t understand Mr Neil to have completely abandoned his opposition to the reports of Professor Wakefield.

9. It is the first defendant’s position that Associate Professor Cestari’s reports should be excluded in their entirety. In the alternative Mr Downing submitted, if allowed, the plaintiff should be required to, if I may put it informally, “drop” from his suite of experts another of the ophthalmologists qualified to provide opinions on liability issues whose reports had already been served in accordance with case management orders of the court.

10. Mr Neil maintains that he should be permitted a third expert, as the first defendant would have it - he would put it differently - from the ophthalmological specialty and if required to choose between his existing experts he should be given time to consider that choice.

11. I think it sufficient for me to deal with the relevant procedural history in order to crystallise the issue in brief. The statement of claim was filed on 15 October 2021 and was case managed by the Common law Registrar thereafter. From 10 May 2024 the proceedings were judicially case managed by Schmidt AJ. the parties appeared before her Honour on a number of occasions. On 3 October 2024 her Honour made orders inter alia requiring the service of the plaintiff’s expert evidence by 28 March 2025. I infer that her Honour must have been satisfied that that order had been substantially complied with because on 20 June 2025 her Honour fixed the hearing dates to which I have already referred. It was after that last directions hearing before her Honour that the first report of Associate Professor Cestari was served on 31 July 2025.

12. If I may put it this way, the legal basis of the first defendant’s objection is r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) requiring leave to rely upon any expert report purportedly served after the time for service fixed by an order of the Court has expired, which leave may only be granted on the basis of exceptional circumstances. I accept that this is the correct legal context in which to determine the plaintiff’s application. I should say before dealing with the relevant factual matters that ‘exceptional circumstances’, although a familiar phrase appearing in many different statutory contexts, is not a term of art, nor is it an expression of fixed content or meaning. Beyond saying that the deployment of that expression in a statutory provision or a rule of court requires the moving party to demonstrate that something out of the ordinary exists motivating the grant of leave which the expression governs. The identification of the matter sufficient to satisfy it is not capable of confinement to rigid categories or classes or indeed to circumstances within a narrow compass.

13. Having so directed myself, another part of the context upon which the first defendant relies is the provisions of Practice Note SC CL7 (“the Practice Note”) governing the practice of the court in the professional negligence list. By cl 31 of the Practice Note an important concern is expressed about the number of experts required to give evidence in personal injury cases. It provides:

“The practice of having a large number of experts qualified, both medical and otherwise, whose opinions may be overlapping and whose reports are either not used or are of little assistance to the court is costly, time-consuming and productive of delay.”

14. Having referred to that important consideration and the powers of the court conferred by cl 32 of the Practice Note, which include the power to: reject the tender of an expert’s report; refuse to allow the expert to give evidence; and disallow costs in relation to qualifying the expert, cl 33 makes the following important provision:

“The Court recognises that the liability aspects of medical negligence claims often involve complex issues as to breach and causation. This may require more than one expert from a party to give evidence on a particular issue or issues. However, where there is more than one expert to give evidence on an issue, the evidence will be given concurrently unless directed by the Court. Particular directions in relation to those issues will be given at an appropriate point in the directions hearing.”

15. The Practice Note goes on in cl 34 to be more prescriptive, or perhaps proscriptive, in relation to qualification of experts in personal injury cases generally without derogating in my view from cl 33. Clause 34 is by necessary implication more concerned with experts as to quantum.

16. In commendably succinct and pertinent submissions, Mr Downing pointed out that the plaintiff had, within the time limited by various orders made by the Court, qualified two ophthalmologists, being Dr Dahl and Dr Beaumont. It was also pointed out that Dr Beaumont described himself as a general and neuro-ophthalmologist, but more than that, Mr Downing took me through the salient aspects of Dr Beaumont’s reports and pointed out that he expressed himself confidently upon the medical issues about which he was required to express opinions, including engaging intellectually with the contrary or countervailing reports served on behalf of the defendants from Drs Hunyor, Chan and Lee.

17. From the affidavit of Mr George Elmassian, the solicitor for the plaintiff, sworn today, I deduce that the factor leading to the plaintiff’s legal advisors seeking a third opinion was the service of the report of Dr Chan, who holds a chair in medicine at a leading university. I also infer from the circumstances of the case and the material I have received that, when Associate Professor Cestari’s report was served on the first defendant on 31 July 2025, prompt objection was taken and, from the arguments of Mr Downing and Mr Neil, I would infer that Associate Professor Cestari or an expert of like qualifications was sought out; because it was obvious that while Dr Beaumont was a very experienced ophthalmologist in private practice over many years who had developed an expertise in neuro-ophthalmology, he lacked the credentials and professional attainments of Professor Chan, whose report had been served by the second defendant. Professor Chan’s fellowship was in neuro-ophthalmology as opposed to general ophthalmology. She occupies a current public hospital appointment as a neuro-ophthalmologist. She has, as I have said, academic appointments including a chair in medicine and carries out primary research specifically in the relevant area of non-arteritic ischaemic optic neuropathy. None of these attainments are enjoyed by Dr Beaumont – whatever his intellectual strengths are; and no doubt they are considerable.

18. From the letter of Dr Beaumont of 29 September 2025, which appears at p 111 of the Court Book, it is clear that Associate Professor Cestari holds equivalent credentials and attainment to Professor Chan, albeit in an American context.

19. Mr Downing argued with some persuasion that a party ought not be permitted to simply accumulate experts as though court cases are decided by weight of numbers, which of course they are not. Notwithstanding his profession of the subspecialty of neuro-ophthalmology, Associate Professor Cestari was simply recruited to the team to provide that weight of numbers to which I have referred, so the argument ran.

20. Mr Downing said there was nothing in the circumstances disclosed by the evidence that arose to the level of exceptional circumstances and having regard to the obvious intent of the Practice Note, overriding purpose, and the consideration that costs ought to be proportionate, no reason had been demonstrated for me to exercise the power in UCPR r 31.28 to give the plaintiff leave to rely upon the additional reports.

21. Mr Neil pointed out that even allowing for the fact there were two defendants there were three ophthalmologists on the defendants’ side of the record including Professor Chan, who was a neuro-ophthalmologist. Granting leave to the plaintiff to rely on Associate Professor Cestari would, far from giving the plaintiff a numerical advantage, even up the ledger, if I can put it that way. He also pointed out that, given the long gestation period between fixing the date and the hearing commencing, by the time the matter comes on for hearing the defendants will have had Associate Professor Cestari’s report getting on for 16 months, and there is force in that argument in terms of the consideration of prejudice which must always be relevant.

22. Moreover, given that the defendants have at their disposal three eminently qualified ophthalmologists, there would be no difficulty in meeting and, if possible, answering Associate Professor Cestari’s views in the short term. Mr Neil pointed out that much of the opinions of Associate Professor Cestari were directed not so much to the primary issue of the medical cause of the plaintiff’s loss of vision but from a neuroophthalmological stand point he had evaluated and offered salient criticisms of the opinion of Professor Wakefield expressed from the latter’s stand point as an immunologist, and that these matters were sufficient to satisfy the statutory test in the circumstances to permit me to grant the plaintiff leave to rely upon the reports.

23. I have been taken to a number of decisions. In particular emphasis was placed upon the judgment of Cavanagh J in Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 and of Bellew J in Battersby v Allen [2017] NSWSC 1724. I have found their Honours’ judgments helpful but inevitably in the case management area each case is fact sensitive and turns upon its own circumstances. I must say that I am of the view that a general ophthalmologist, even one having a particular interest and experience in neuro-ophthalmology, is in a somewhat different category from a person trained and qualified to practise in the subspecialty of neuro-ophthalmology by dint of that specific training, education and professional experience. I think there is force in Mr Neil’s argument that permitting the plaintiff to rely upon Associate Professor Cestari’s reports does more or less balance the ledger in terms of each side of the record having the benefit of the opinion of two general ophthalmologists and one neuro-ophthalmologist.

24. I think Dr Beaumont’s letter of 29 September 2025 is perhaps betraying a level of modesty which is not necessarily all that becoming, but at the same time it does stand out that he lacks the credentials and professional attainment of each of Professor Chan and Associate Professor Cestari, whatever his wide experience.

25. There is obviously, and the contrary was not by Mr Downing, no forensic prejudice to either defendant in permitting the plaintiff an additional expert in this regard. To adopt the familiar phrase well-deployed by Mr Neil, the Rubicon of restraint in relation to the cost of qualifying experts in this case was crossed long ago. Denying the plaintiff reliance upon Associate Professor Cestari would really be an exercise in forensic discipline for its own sake. It seems to me that the interests of justice are better served by allowing reliance upon the report. Counting only the liability experts, there are three neurosurgeons; pursuant to my orders, there will be six variously qualified ophthalmologists; two anaesthetists; and there soon will be probably two immunologists. This says nothing of the many experts who have been properly engaged for the purpose of the quantum issues. From the plaintiff’s notice of motion there seem to be four psychiatrists, two orthopaedic surgeons, two ophthalmologists concerned with quantum issues only, and two occupational or rehabilitation physicians. I think that list of specialties demonstrates the force of Mr Neil’s submission and I am satisfied that leave should be granted in the exceptional circumstances established by the evidence before me, for the plaintiff to rely upon the reports of Associate Professor Cestari in addition to the reports already served.

26. I mention that Mr Neil, with great respect, uncharacteristically, but faintly maintained his objection to Professor Wakefield’s report. I am not satisfied that it has been demonstrated that the opinions expressed by Professor Wakefield are not relevant in the present case for reasons I addressed with counsel this morning, which will appear adequately on the transcript. However, I am prepared to grant leave to the plaintiff, if so advised, to qualify an immunologist to deal with the issues raised by Professor Wakefield.

27. I note from Mr Elmassian’s affidavit that he had been able to qualify Associate Professor Cestari with an appropriate degree of celerity once he received the benefit of Senior Counsel’s advice and, obviously, although there remains time before the commencement of the hearing, the same degree of celerity should be brought to bear in terms of the identification, selection and qualification of an immunologist, if advised to undertake that task.

28. Accordingly, I make the following orders:

29. The plaintiff is granted leave to rely on the reports of Associate Professor Cestari dated 29 July 2025, 21 October 2025, 13 November 2025 and 10 February 2026.

30. The plaintiff is granted leave to qualify an immunologist to obtain evidence in reply to the reports of Professor Wakefield.

31. By consent:

32. Pursuant to Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff is to attend, within 28 days of this order, the Douglas Hanly Moir pathology lab at Suite 507B level 5, 438 Victoria Street Darlinghurst, to submit to a standard venepuncture in order to provide a blood sample sufficient to permit the performance of the tests listed in the sample pathology request form annexed to Professor Wakefield’s report of 10 June 2025 (Court Book page 501).

33. The first defendant to serve a copy of any pathology report obtained as a result of the testing described in order 3 above, within 48 hours of receipt of the report.

34. The following joint conferences of experts to be organised by the parties on breach/causation issues:

(i) Neurosurgeons: Dr Carney, Dr Mendelow and Dr Brazenor: (ii) Ophthalmologists/neuro-ophthalmologists: Dr Beaumont, Dr Dahl, Dr Cestari, Dr Hunyor, Dr Chen and Dr Lee.

7. A facilitator and transcription services be used for the above joint conferences.
8. The breach/causation joint conferences to take place and reports to issue by 17 April 2026.
9. Costs of the plaintiff’s motion of 27 October 2025 and the first defendant’s motion of 29 October 2025 are each parties’ costs in the cause.
10. The motions of 27 and 29 October 2025 are otherwise dismissed.
11. Matter listed for further direction before Justice Campbell at 9:30am on 24 April 2026.
12. Liberty to restore on 3 days’ notice.

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