Ralston and Collins v Chaffey

Supreme Court of NSW|2018-12-12|Before: Davies J, Harrison J

Judgment

Jane Ralston, the plaintiff in proceedings 2014/5095, is the mother, and Malcolm Collins, the plaintiff in proceedings 2016/17192, is the father, of Paige, who was born on 20 November 2004 with a high level (60%) mosaic Down Syndrome. The plaintiffs brought proceedings against six defendants regarding the inadequacy of the care with which Ms Ralston was provided during her pregnancy in relation to detecting that the child had Down Syndrome.
The first defendant was the plaintiff's general practitioner. The second defendant was a medical practitioner carrying on business as an obstetrics and gynaecology ultrasound and pre-natal diagnosis specialist. The third defendant was a company that performed pathology tests. The fourth and fifth defendants were general practitioners, and the sixth defendant was an organisation that carried out risk calculations and assessments for screening of Down Syndrome. The proceedings against the third defendant have been resolved by a consent judgment in favour of the third defendant dated 25 May 2018.
By an amended notice of motion filed 26 September 2018, originally filed on 3 August 2018, Ms Ralston seeks to rely on two reports of Dr Steven Chow of 30 March 2018 and 11 June 2018, and to rely on the report of Professor Kevin Spencer dated 1 September 2018. Dr Chow is a specialist obstetrician gynaecologist sonologist, and Professor Spencer is a consultant biochemist and a leading worldwide authority in matters related to pre-natal screening for trisomy 21 and other chromosomal anomalies.
The need for leave arises because of earlier orders made by the Registrar including a guillotine order that prevented the plaintiffs from relying on reports not served by a certain date.

Background

Ms Ralston became pregnant with Paige at the age of 37 years in early 2004. She attended the first defendant on 13 April 2004 and was referred for blood tests including a screening for Down Syndrome. She was also referred to Dr Wass for the purposes screening for Down Syndrome. Dr Wass was the second defendant in the proceedings but she died on 23 May 2016. Her executor has been substituted as the second defendant.
Blood was collected from Ms Ralston on 29 April 2004 and sent to the third defendant for the purposes of carrying out blood tests including screening for Down Syndrome. In fact no screening took place.
On 20 May 2004 Dr Wass carried out an ultrasound nuchal translucency (NT) scan on Ms Ralston. The results of that scan were forwarded to the sixth defendant.
On or about 31 May 2004 Dr Wass became aware that there were no blood tests carried out for diagnosis of Down Syndrome. She telephoned Ms Ralston and advised her about that matter. It seems that Dr Wass said this to Ms Ralston: You would be in a low risk group. You have a couple of choices. We can do a morphology scan and have a careful look to see if the foetus had anything suggestive of Down syndrome or chromosomal abnormalities or you can have an amniocentisis which comes with a risk of miscarriage of 1/200. You can still have an amniocentisis at 20 weeks if there are any problems disclosed on the morphology scan before that.
The plaintiffs allege that on 9 July 2004 Ms Ralston underwent a morphology scan carried out by Dr Wass. She reported to Ms Ralston on that date that the morphology scan was normal.
The plaintiff pleads that if she had been informed prior to 20 weeks gestation that the child she was carrying was suffering from Down Syndrome she would have taken steps to have the pregnancy terminated.
The present motion is only opposed by the second defendant. The first, fourth, fifth and sixth defendants neither consent nor oppose leave being given.
The particulars of negligence against the second defendant are these: 29. Particulars of Negligence of the Second Defendant: a) Failure to advise the Plaintiff that the risks of Down Syndrome were materially increased when only 1 test was carried out, that is the ultrasound. b) Failure to advise the Plaintiff that she should have the blood tests for Down Syndrome. c) Failure to advise the Plaintiff that there was still sufficient time to have the blood tests for Down Syndrome and advise and or act on the result. d) Failure to advise the Plaintiff that there was a lower chance of picking up Down Syndrome with the ultrasound alone. e) Advising the Plaintiff words to the effect "everything looked fine and I would not worry about it" when in fact that was not the case and such advice was incorrect and/or incomplete and or inappropriate. f) Failure to properly or adequately manage the Plaintiff's pregnancy. g) Failure to ensure the Plaintiff was referred for appropriate further blood tests and or order appropriate further blood tests for Down.

Procedural history

The statement of claim by Ms Ralston was filed on 7 January 2014.
On 10 April 2014, the plaintiff served a report of Professor Robert Bryce, a specialist obstetrician and gynaecologist, dated 7 January 2013.
The proceedings first came before the Court on 14 April 2014 when the Registrar made the following orders (inter alia): 1. The plaintiff to serve all primary reports in compliance with UCPR 31.36 by 14 May 2014. 2. The plaintiff to respond to the first defendant's requests for further and better particulars dated 21 February 2914 and 6 March 2014 by 30 April 2014. 3. The plaintiff to respond to the second defendant's requests for further and better particulars dated 11 March 2014 by 30 April 2014. 4. The plaintiff to respond to the third defendant's request for further and better particulars on liability and quantum by 5 May 2014.
On 18 June 2014 the Registrar made these orders: 1. Plaintiff to provide replies to all outstanding particulars on or before 30 June 2014. 2. The plaintiff to serve evidence against the defendants pursuant to UCPR 31.36 by 7 August 2014.
On 3 September 2014 the Registrar made the following orders: 1. Plaintiff is to respond to any outstanding requests for particulars by 19 September 2014. 2. Orders 1-3 namely, 1. Plaintiff to complete service of all primary expert evidence in relation to breach of duty, causation and quantum by 19 September 2014.
On 24 September 2014 the Registrar made the following order: 1. Plaintiff to complete service of her primary liability reports by 1 October 2014.
The proceedings were before the Registrar on 8 October 2014. On that occasion the Court noted: The plaintiff has completed service of her primary liability (being breach of duty and causation) evidence.
On 10 December 2014 the proceedings were before the Registrar. The Court made orders for the plaintiff to serve expert evidence against the third, fourth and fifth defendants whilst: noting the plaintiff has completed service of primary liability evidence against the first and second defendants.
On 12 December 2014 the solicitors for Dr Wass served a report from Professor Jonathon Hyett, a specialist obstetrician and gynaecologist.
On 4 March 2015 the Registrar made the following order: 3. Extend time for Plaintiff to serve liability evidence relating to fourth defendant and fifth defendant only to 03/04/15.
On 24 June 2015 the Registrar made the following order: 1.4 The Plaintiff to complete service of further liability evidence relating to the 1st, 4th and 5th Defendants by 24 August 2015.
On 1 September 2015 Professor Kevin Spencer, a consultant biochemist in the United Kingdom, was retained by the solicitors for the plaintiffs.
On 2 September 2015 when the proceedings were before the Court, the following orders were made: 1. Extend the time for plaintiff to complete service of further causation evidence relating to the first, third, fourth and fifth defendants to 30 September 2015. 2. Plaintiff is unable to rely upon any further causation evidence in chief served after 30 September 2015 without leave of the Court.
On 1 October 2015 Professor Spencer provided his first report to the plaintiffs' solicitors. It was served on Dr Wass's solicitors on 6 October 2015.
On 7 October 2015 when the proceedings were before the Court, the following order was made: 1. Notice of motion seeking to lodge a further amended statement of claim and seek leave to rely upon further expert evidence by the plaintiff is to be filed and served by 28 October 2015.
On 28 October 2015 the plaintiff filed a notice of motion seeking leave to file an amended statement of claim, but did not seek leave to rely upon further expert evidence.
On 17 May 2016, Dr Wass's solicitors retained Dr Michael Sinosich. Dr Sinosich, like Professor Spencer, was a scientist with expertise in pre-natal testing.
On 23 May 2016 Dr Wass died.
On 27 September 2016, pursuant to an order made on 31 August 2016, the plaintiff filed a second further amended statement of claim which substituted for Dr Wass the executor of Dr Wass's estate.
On 15 February 2017 the proceedings were before the Court. Amongst the orders made were the following: 1. Defendants to complete service of liability and causation evidence by 12 May 2017. … 3. Plaintiff to serve evidence in reply by 29 September 2017.
On 8 May 2017 the second defendant served the report of Dr Michael Sinosich dated 5 May 2017.
On 4 October 2017 and 4 April 2018 the proceedings were before the Court. No application was made by the plaintiff to extend time for service of evidence in reply. On those days, orders were made only for the parties to mediate by two identified dates.
On 7 November 2017, the plaintiffs' solicitors retained Dr Steven Chow, a specialist obstetrician gynaecologist sonologist.
On 5 April 2018 the plaintiffs' solicitor, Mr Geoffrey Potter, received a report from Dr Chow dated 30 March 2018. He thereafter provided further instructions to Dr Chow on 4 June 2018. He received a second report from Dr Chow dated 11 June 2018. The plaintiffs' solicitor served those reports on the second defendant on 18 June 2018.
The notice of motion filed 3 August 2018 was listed before Wilson J on 28 September 2018. At that time, all that was sought was leave to rely upon the two reports of Dr Chow. Counsel for the plaintiff sought an adjournment of the hearing of the motion for two reasons. The first was to enable the filing of an amended notice of motion to seek leave to rely on the report of Professor Spencer of 1 September 2018. The second reason was that Mr Potter, who had sworn an affidavit in support of the motion, was not available for cross-examination. In those circumstances Wilson J adjourned the notice of motion to the Registrar's list on 3 October 2018 and ordered the plaintiff to pay the defendants' costs thrown away by the adjournment.
When the matter came before Prothonotary Kenna on 3 October 2018, the Prothonotary listed the amended notice of motion for hearing before the Common Law Duty Judge on 19 October 2018. On that day Johnson J was the Duty Judge. In his Honour's view, a view ultimately confirmed by senior counsel for the plaintiff and counsel for the second defendant, the matter would take half a day to hear. Justice Johnson as duty judge did not have half a day to hear the motion on that day. A further reason the matter was required to be adjourned was that, once again, Mr Potter was unavailable when he was required for cross-examination. His Honour stood the matter into the Registrar's list on 24 October 2018. On that day it was fixed for hearing on 6 December 2018 on the basis that it would take a whole day to hear.

The rule

The applicable rule for consideration of the present application is Uniform Civil Procedure Rules 2005 (NSW) r 31.28 which provides: 31.28 Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (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).

Submissions

The plaintiff accepted that exceptional circumstances must be demonstrated to warrant the granting of leave. The plaintiff submitted that those circumstances are that the report of Dr Sinosich served by the second defendant created the requirement for the plaintiff to obtain expert evidence as to pre-natal screening for Down Syndrome in Australia. The plaintiff submitted that until 5 May 2017 no such issues had been raised and there was no requirement for the plaintiff to obtain evidence of that nature.
The plaintiff submitted that as a matter of procedural fairness the second defendant should not be permitted to introduce the evidence of Dr Sinosich, which raised specific issues as to the pre-natal screening for Down Syndrome in Australia, but then argue that an order made 20 months previously in 2015 should prevent the plaintiff from serving any evidence in relation to the issues raised. The plaintiff submitted that it must have been apparent to the lawyers for the second defendant when Dr Sinosich was instructed in May and December 2016 that the plaintiff would wish to serve evidence in response to that.
The plaintiff submitted that there was no prejudice to the second defendant given that she had retained experts who have been instructed and had produced reports over a number of years. Further, the training records of the second defendant were readily available to those experts as they were to Dr Chow. In that way, the second defendant is able to meet the reports of Dr Chow.
The plaintiff submitted that if she was not permitted to rely on the reports of Dr Chow she would suffer serious prejudice, which would far outweigh any short term disruption to the current timetable or to any perceived prejudice to the second defendant. The plaintiff submitted that when the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) was regarded, reliance on the reports of Dr Chow assisted with identifying the real issues and facilitating the just, quick and cheap resolution of the proceedings whether in mediation or at a hearing.
The plaintiff further submitted that the report of Professor Spencer of 1 September 2018 partly responds to the report of Dr Sinosich and partly to Dr Chow's reports as to NT testing being applicable to the plaintiff.
The plaintiff submitted that paragraph 4 of the second further amended statement of claim specifically raises the issue of Dr Wass's training, and pointed to the admission of that paragraph by the second defendant in the defence. The plaintiff submitted that the issue of training was further raised by Dr Sinosich.
The second defendant does not oppose leave being granted with respect to Professor Spencer's response to question 1 asked of him by the solicitors for the plaintiff.
The second defendant submitted that the Chow reports are not responsive to Dr Sinosich either as to subject matter or expertise. The second defendant pointed to four matters in that regard:
Dr Sinosich's report deals with issues of causation, in particular, the likelihood of mosaic 21 Down Syndrome being detected if certain screening had been performed. It was responsive to reports served by the plaintiff from Professor Spencer.
The Chow Reports primarily address matters in which Dr Chow considers the care the plaintiff received to have been deficient, that is, matters relevant to the alleged breaches of the duty of care.
Dr Chow does not address the matters raised in the report of Dr Sinosich. That report is not referred to in the Chow Reports.
Dr Sinosich is a scientist with an expertise in pre-natal pathology. By contrast, Dr Chow is an Obstetrician Gynaecologist Sonologist.
The second defendant submitted that it appears that the service of the Chow Reports was motivated by the plaintiff's perception of a difficulty in or alternative to her case that had existed since it was filed in 2014 and since her service of expert evidence on liability completed in 2015. The second defendant submitted that that is not a matter capable of being described as exceptional sufficient to justify the granting of leave.
The second defendant submitted that she would suffer serious prejudice if the plaintiff were permitted to rely upon the Chow Reports. Since Dr Wass has died, the second defendant is unable to obtain information regarding the matters the Chow Reports raise.
The second defendant submitted that the Chow Reports allege that Dr Wass's care of the plaintiff was deficient in a number of ways not previously raised by the plaintiff. Those deficiencies include suggestions that Dr Wass performed an ultrasound on the plaintiff in a manner that was deficient, that Dr Wass held inadequate qualifications for the work she was performing, and that a statement made by Dr Wass during a phone call with the plaintiff was misleading. The second defendant submitted that they were not matters pleaded or particularised in the second further amended statement of claim.
The second defendant submitted that granting leave would be inconsistent with the overriding purpose and principles outlined in ss 56 to 59 of the Civil Procedure Act in circumstances where the proceedings commenced four years ago and relate to events that occurred 14 years ago, the second defendant was ready to proceed to mediation and hearing prior to the service of the Chow Reports, where the second defendant would now need to instruct an expert which will delay any hearing date, where the plaintiff has already served substantial expert evidence relating to the liability of the second defendant, and where the Chow Reports raise allegations outside the plaintiff's pleaded case.
The second defendant submitted that the assertion by the plaintiff's solicitor that the Chow Reports were required by reason of Dr Sinosich's report is inconsistent with the fact that Dr Chow was not provided with the report of Dr Sinosich and it was not referred to in his instructions, and the fact that in December 2014 and June 2015 the second defendant served expert reports that extensively considered pre-natal screening in Australia, being the reports of Clinical Professor Jonathan Hyett and Dr Debra Kennedy.
The second defendant submitted that the second affidavit from the plaintiff's solicitor offers no explanation as to why it took the plaintiff 13 months to obtain the Chow Reports or why the prospect of those reports was never raised with the second defendant or the Court prior to June 2018.
The second defendant submitted that the assertion by the plaintiff that Dr Sinosich further raised the issue of training cannot be accepted. The only reference in Dr Sinosich's report is where he stated: All procedures should be performed by experienced operators who have had appropriate training.

Legal principles

In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA (Tobias JA and Handley AJA agreeing) said of the term "exceptional circumstances" in UCPR r 31.18, which was the predecessor to UCPR r 31.28 and in identical terms, the following: [66] Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4). (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208). (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913). (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]). (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913). (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186). [67] In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.
Further, s 58 of the Civil Procedure Act provides: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

The reports

Dr Chow's first report of 30 March 2018 is a wide ranging report. A fair description of it would be a report prepared by an expert who was asked to tell the solicitor everything he saw that was wrong with the way the plaintiff's treating doctors, and Dr Wass in particular, had conducted themselves in treating the plaintiff. The report nowhere comments on Dr Sinosich's report, which is scarcely unusual since Dr Chow was never provided with that report.
There is no doubt that much or most of what is contained in the report could not in any sense be described as evidence in reply. The way the report is expressed in many respects falls foul of the requirements of the Expert Witness Code as well as what the authorities such as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 require. The report raises new issues well outside the existing pleading and particulars. It challenges Dr Wass's qualifications to have carried out the testing, the way she conducted the testing and her interpretation of the testing. It includes Dr Chow's own analysis of the scan on the DVD which was provided to him, resulting in his conclusion that the NT measurement was 2.2mm and not 1.3mm as Dr Wass had reported.
The answers to questions 2 and 3 in Professor Spencer's third report responded to enquiries which asked him to assume that the NT measurement was 2.2 and to express opinions about what that indicated for the plaintiff's assessment and treatment.

Mr Potter's evidence

The plaintiff's solicitor, Geoffrey Potter, swore two affidavits in support of the present application. The first affidavit of 20 July 2018 chiefly detailed the reports served by the parties in the proceedings and made reference to a number of directions hearings where particular orders had been made. Having referred to the service of the report of Dr Sinosich, he said at paragraph 19: The report of Dr Sinosich raised issues in relation to pre natal screening for Down Syndrome in Australia. Upon considering the report of Dr Sinosich it became apparent that the Plaintiff would require an Australian expert in that field. The Plaintiff then made enquiries as to an appropriate expert and identified Dr Steven Chow as such an expert.
In his second affidavit sworn 15 October 2018, Mr Potter noted that he had instructed Professor Kevin Spencer, a prominent expert in the field of the detection of Down's Syndrome (Trisomy 21), and that Professor Spencer had provided three reports. Mr Potter went on to repeat that, having received the report of Dr Sinosich, he considered that the plaintiffs should obtain an expert "to review the issues raised by Dr Sinosich." He identified Dr Chow, instructed him on 7 November 2017, and subsequently conferred with him on 24 January 2018.
Mr Potter said that Dr Chow raised a number of issues in relation to the testing that was carried out, and to the failure by Dr Wass to recognise what Dr Chow described as gross abnormalities. Mr Potter said it became apparent from that conference that the plaintiffs ought to investigate the qualifications of Dr Wass, her previous level of achievement in relation to detection rates, and her history with the RANZCOG.
Mr Potter said that, having received the report of Dr Chow, presumably of 30 March 2018, and the report of Dr Sinosich, he provided those reports to Professor Spencer for comment. He then said at paragraph 8: These reports were not obtained in reply to Dr Sinosich as it was appropriate that Dr Chow form his own independent views in relation to the Plaintiff's circumstances. However, when asked in cross-examination about that statement, the following evidence was given (at T29-30): Q. Do I take it that you asked the Court to accept that, in your opinion, the reports of Dr Chow were not obtained in reply to the opinion of Dr Sinosich? A. No, that's incorrect. Q. This affidavit is incorrect, is it? A. I suspect it's a typographical error, yes. HIS HONOUR Q. Have you got page 31 there, Mr Potter? A. Yes, I do, your Honour. Q. I think counsel was asking you about the second sentence in paragraph 8. A. Yes, it's clearly wrong. Q. So what should it say? A. What I had intended to convey in that sentence was that I hadn't supplied the report of Dr Sinosich to Dr Chow prior to his report being prepared because it was important to form his own views. I don't understand how it reads why it does but that's clearly not the intention of the sentence. Q. What you've just said seems to be a long way from what the sentence does say. A. I think, your Honour, what I intended to say was that these reports - no, look, I certainly did not intend to convey that indication, and it was in fact the fact that I had not provided Dr Chow with Dr Sinosich's report for that reason so that he could form his own independent views. That was what I had intended to convey. I apologise for the error. SANDFORD Q. In fact, the report of Dr Sinosich from the material that has been served doesn't appear to ever have been provided to Dr Chow in advance of the production of the three reports that have been served in the proceedings, is that the position? A. That's correct, yes.
Mr Potter's oral evidence was to this effect. He retained Dr Chow to provide a local expert's view on the matters set out in Dr Sinosich's report. Although he had reports from Professor Spencer, Professor Spencer was an overseas expert. He did not initially give specific instructions to Dr Chow concerning what expert opinion he should provide. He did not provide Dr Chow with a copy of the statement of claim or indicate to him the particulars of negligence alleged against Dr Wass. His initial instructions were general in that regard.
When he met with Dr Chow, Dr Chow raised a number of issues about the way the doctors, and Dr Wass in particular, had carried out their tasks. He did not provide Dr Chow with Dr Sinosich's report because that was his usual practice. He wanted the expert's view at least initially independent of any reports to which his report might be responding. He did not feel it was appropriate to confine Dr Chow's expert opinion. At no stage did he provide written instructions to Dr Chow that specified the particular matters on which he needed Dr Chow's expert opinion. He never provided Dr Sinosich's report to Dr Chow.
I did not find the evidence of Mr Potter at all satisfactory, nor did I find his approach to the briefing of Dr Chow to be satisfactory. There were no written instructions to Dr Chow, other than in the most general terms. Mere oral instructions in a conference, in respect of which there do not appear to be any notes whether contemporaneous or otherwise, is not an appropriate way for an expert to be retained. The opposing party is entitled to understand what was asked of the expert. It was counter-intuitive not to provide Dr Chow with the report of Dr Sinosich if it was really the case that Dr Chow was retained to respond to issues raised by Dr Sinosich.
Mr Potter's approach to retaining Dr Chow may be contrasted with his approach to Professor Spencer. Having retained Professor Spencer in general terms and, presumably conferred with him, Mr Potter then wrote a detailed letter on 10 September 2015 asking for a report in response to 13 specific questions. Although Mr Potter wanted to suggest that he dealt with Dr Chow no differently from any other expert, his approach to Professor Spencer suggests otherwise.
I cannot escape the feeling that a number of answers given by Mr Potter in cross-examination were given to justify the approach he was taking to what eventuated from his dealings with Dr Chow. Since he had not directed Dr Chow's attention in the first instance to the report of Dr Sinosich and to the issues raised by him, Dr Chow provided a general opinion which, on its face, provided new and different evidence of negligence on Dr Wass's part. If this evidence was to be relied upon by the plaintiff in the proceedings, it should have been obtained from Professor Bryce or from some other expert including Dr Chow at a much earlier time. That is so because time limits were imposed on the plaintiff for the service of reports dealing with liability and causation. In ordinary circumstances, that might not have provided the same barrier to the plaintiff relying on the new evidence, but in the present case, the significant matter is that Dr Wass died in 2016 and is not in a position to respond to the new evidence.

The modified application

It became clear during the submissions by senior counsel for the plaintiff that the plaintiff would not be able to rely on all of the material contained in Dr Chow's reports, largely because Dr Wass had died and the prejudice that would result if all of the evidence in Dr Chow's reports were admitted. Further, no proposed amended pleading or particulars had been provided so that the second defendant and the Court could understand what new issues were sought to be raised. It was necessary, therefore, to adjourn the application so that those acting for the plaintiff could identify precisely the parts of Dr Chow's reports they were seeking to rely upon and to make necessary amendments to the statement of claim where new issues were raised.
When the matter returned to Court on 12 December 2018, the plaintiff had served a proposed further amended statement of claim comprising the following pleading and particulars: (a) Two new paragraphs as follows: 30a On or about 20 May 2004 the second defendant faxed to the sixth defendant the results of the plaintiff's ultrasound nuchal translucency scan. 30ab As at 20 May 2004, the nuchal translucency of the foetus measured 2.2mm. (b) The date in paragraph 34 was corrected from 16 June 2004 to 7 July 2004. (c) Two further particulars of negligence of the second defendant were added as follows: (g) failure to assess the nuchal translucency on 20 May 2004 as being abnormal. (h) failure to assess the nuchal translucency on 20 May 2004 as measuring 2.2mmm.
The parts of Dr Chow's first report that are now sought to be relied upon against Dr Wass are what follows: Dr Debbie Wass, FRANZCOG, DDU, COGU, Specialist Obstetrician Gynaecologist Sonologist attended to JR in a professional capacity on 20.05.2004 at 12 w 2d GA with a referral from Dr H Chaffey (RD 26, Dr Chaffey letter 13.04.2004). The referral letter from Dr Chaffey is dated 13.04.2004. "Dear Debbie, Please perform AN screening on Jane. She is 37 years old. 1 child- A & W. Thanks. Heather Chaffey". JR filled in a patient questionnaire on 20.05.2004 at Dr Wass' clinic (RD 31- Questionnaire) answering in part: What do you wish to get out of the scan today? "No Down syndrome/ Sex" Do you have any other concerns about the pregnancy?: I have been very stressed". A Compact Disc/DVD video recording of the entire ultrasound scan examination is available for viewing and examination, with the identification names of Dr Wass and Jane Ralston, dated 20.05.2004. (RD 32 -Video recording of entire 12 week Ultrasound examination on JR plus static images). … The same table shows the actual performance made by Dr Wass on 20.05.2004 in a separate column. She failed on all the major criteria ; including failure to show nasal bone, to measure fetal heart rate, to demonstrate umbilical cord insertion at the fetal abdomen, and fetal bladder (RD 33). Dr Wass failed to perform scan for the minimum of ten minutes, failed to magnify the head and thorax to fill most of the image frame, failed to display amniotic membrane separate from skin on the back of the neck, failed to take two or more separate images for 2 or more separate NT measurements, failed to place the calipers on two crisp lines when measuring NT (The two calipers were placed on the fuzzy blurred areas by Dr Wass). At the points of NT measurement, fetal skin was compressed by amnion, thus compressing the nuchal translucency measurement and a false low reading was taken at 1.3 mm See Image A, date/time stamped 20.05.2004 at 12.17.44 am, in RD-32 , Compact Disc ). … NT measurement 2.2 mm re-calculated in January 2018: (RD 32, CD with video and static images) When the single static image (Image A) of the fetus available was further enlarged from Image A to Image B on the Compact Disc, it is possible to make a measurement using mechanical dividers, of the NT at the widest point of nuchal fluid at the level of the fetal shoulder shown by the Nuchal Translucency Space between the tips of the yellow vertical arrowheads ,as described by FMF, London and NTEUMP, RANZCOG, and the measurent NT thickness is 2.2 mm (possibly 2.3 mm or larger). Given that the fetal image showed compression of the fetal skin against the amniotic membrane, the real actual nuchal translucency measurement must necessarily have been larger than 2.2 mm. Image B shows the false low reading of 1.3 mm done by Dr Wass with her original calipers and the vertical blue arrows indicate the narrowest part of the NT at the location where Dr Wass made the NT measurement, which is a gross error of under-measurement. The two separate linear space measurements are taken and a ratio is calculated. Blue space measurement divided by yellow space measurements give a ratio of 0.6. Hence the correct NT measurement is 2.2 mm. or larger. (The converse is true, yellow space divided by blue space measurement gives a ratio of 1.7. The widest point of NT for the image B is 2.2 mm at the very least). Within these limitations, the NT measurement was entered into the FMF software program supplied by NTEUMP, RANZCOG and incorporating the maternal age, CRL, the combined data ( without using PAPP-A or hCG data), the calculated risk of Down syndrome is 1 in 220 which is high risk of Down syndrome (RD 36 First trimester Screening Report) (RD-13 Snijders 1998, at 77% detection rate of DS using NT alone ; and RD-16, GHSV/VCGS was 59.5% detection rate of Down syndrome with NT measurement alone). Amniocentesis is indicated in JR at 16 weeks gestational age on the basis of the Ultrasound scan findings at 12 weeks done on 20.05.2004.( An alternative recommendation is CVS at 12 weeks). … Dr Wass faxed the typewritten NT report of 20.05.2004 to VCGS in Melbourne and discovered that the PAPP-A & hCG blood test was not available. It is unknown if Dr Chaffey had requested the first trimester MSS blood test or if the blood sample was taken but missing on transit to VCGS or whether the blood sample was lost within the grounds of VCGS at RCH, Melbourne. Dorevitch pathology has a record of blood sample and urine taken from JR on 29.04.2004 at 9w 2d GA for FBE, Rubella, hepatitis 8 surface antigen, blood group and antibodies, Urine sample for microscopy and Culture. Dorevitch Pathology has no documented record of blood sample for the purpose of PAPP-A & hCG for DS testing to be done at VC6S (RD 30). When Dr Wass realised that the PAPP-A & hCG blood sample was not available for combined FTC testing for aneuploidy, she contacted JR by phone on 31.05.2004. A photocopy of a document is available of the Report (RD 04) dated 20.05.2004 of the NT report from Dr Wass addressed to Vivienne or Vicki, VCGS, RCH reporting on the CRL of 62 mm, NT is 1.3 mm, weight is 60 kg. This document shows a handwritten message or note which appears to be written by Dr Wass, noting that: 31.05 (31 May 2004) No blood in Melbourne. Lab did not notify. Pt rang advised low risk (arrow head pointing to the right side) > Morph scan, (ending with a short scribble or sign indicating an initial of Dr Wass). This handwritten note documents that JR was told over the phone that the stand alone NT measurement on 20.05.2004 was low risk of DS. … … Jane Ralston remained in the high risk group of pregnant women (advanced maternal age) with Down syndrome and aneuploidy as she did not receive the combined first trimester screening for DS and have not have amniocentesis or CVS done or Quadruple MSS test between 15 -20 weeks. … … The second trimester ultrasound scan is specifically mentioned as NOT to be recommended for primary screening of Down Syndrome by RANZCOG/HGSA Statement RD-2 C-Obs 4, adopted July 2001 and RANZCOPG/HGSA RD-3 C-Obs 4 adopted March 2004; RD 23 Three Centres, page 20). In a medical booklet printed by MHW, East Melbourne, May 2003 entitled " Prenatal Testing- Your choices" … Mid-Trimester Ultrasound. This routine mid-trimester Ultrasound is designed to detect structural abnormalities. This scan will not detect most babies with Down syndrome (RD 22). Dr Wass failed to offer or arrange forJRto have CVS, amniocentesis, or the second trimester MSS Quadruple test which has a detection rate of DS in the region of 75% ( RD-22-MHW, East Melb, booklet May 2003), 80% detection rate ( RD -19-VCGS publication 80% detection rate for women in age group 35- 39 years), RD 20- Wald 2003 Lancet publication, RD-2 RANZCOG/HGSA recommendation July 20O1, Statement C-Obs 4, RD- 8-Prenatal diagnostic testing in Victoria 2003, Muggli Halliday.). A competent Obstetrician sonologist would have offered or arranged for JR to have CVS, amniocentesis , or DS screening with the Quadruple MSS test between 15-18 weeks. A competent Obstetrician sonologist would have informed JR that the second trimester fetal scan will not detect most babies with Down syndrome or that, at best, the mid-trimester scan will detect only 40 to 45 per cent of Down syndrome foetuses (RD 23, Three Centres Consensus, Page 20 ). … Dr Debbie Wass performed the 19 week morphology scan on JR on 09.07.2004 at 19w 2d gestational age. The nasal bone length is not measured or documented, the atrium diameter of the lateral ventricle of the fetal brain is not measured or documented, the Nuchal fold thickness is not measured or documented, fetal scan images are not available for scrutiny, hence rendering any remote possibility of assessment of risk of fetal aneuploidies useless. The midtrimester fetal morphology scan is specifically listed in College Statements (RD-2-RANZCOG/HGSA Policies C- Obs 4, June 2001, RD-3 RANZCOG/March 2004 and RD-22-MHW Booklet 2003, RD 23 Three Centres Consensus Guidelines) as not to be recommended as a primary screening method for Down syndrome. Dr Wass failed to advise JR of these recommendations. A competent sonologist Obstetrician would have done so. In summary: … Dr Wass failed to write a referral for JR to obtain second trimester MSS to screen for DS, aneuploidies, and open spina bifida. … RANZCOG/HGSA in its national statements/ policies (RD-2; RD-3) on pregnancy care and management specifically state that the mid-trimester fetal scan is not to be recommended as a primary screening test for Down syndrome. (italics added)
The plaintiff also seeks to rely on the answer to question 2 contained in Dr Chow's second report of 11 June 2018 as follows: 2. Does the nuchal thickness result of 2.2 mm on its own, without doing first trimester screening blood tests, warrant an amniocentesis? Answer: Yes, a nuchal thickness of 2.2 mm in a 37 year old pregnant woman, who turns 38 year old at Expected Date of Delivery, without first trimester screening blood tests, has a high risk of Down syndrome, one chance in 217 and does warrant an amniocentesis. I have included computer analysis for a 37 year old pregnant woman (who turns 38 years old at EDD), with scan that shows a fetus of Crown Rump Length 62mm,and NT measurement of 2.2 mm. Her background risk of Down syndrome is one chance in 142. This means that even if she did not have first trimester screening by nuchal translucency measurement or first trimester blood screening, she is at high risk of Down syndrome. After doing a scan at 12 w 4 d, an NT Measurement of 2.2 mm , on computer analysis shows a risk of one chance in 217, a high risk of Down syndrome and warrants an amniocentesis to detect Down syndrome. I have enclosed an attachment labelled Computer Report A.

Are there exceptional circumstances warranting leave?

The threshold issue for determination of the present application is whether exceptional circumstances are demonstrated that warrant the granting of the leave to rely on the evidence of Dr Chow and Professor Spencer. The enquiry is not simply whether the circumstances by which Mr Potter came in possession of the information in Dr Chow's report were unusual or special or uncommon. There must be exceptional circumstances that warrant the granting of leave.
In some respects it could be said that the way Mr Potter went about obtaining Dr Chow's opinion was unusual or uncommon, in that most solicitors acting properly would not have adopted Mr Potter's approach to retaining an expert. That approach was one that was said to be the obtaining of expert opinion to answer an opinion provided by an expert on the other side, but then not directing that expert's attention to the evidence to which a reply was necessary, and simply obtaining a general opinion about all aspects of the treatment received by the solicitor's client.
However, that cannot be exceptional circumstances that warrant the granting of leave because that approach to retaining the expert was an improper approach in the circumstances. That improper approach produced new evidence which, in terms of the orders made, was not evidence that was entitled to be adduced. If Mr Potter had retained Dr Chow in an appropriate way, provided him with Dr Sinosich's report and other necessary information such as the statement of claim, and sought Dr Chow's response to what Dr Sinosich had said about the current practice in New South Wales of screening for Down Syndrome in 2004, the strong likelihood is that the width of the discussion that appears in Dr Chow's report would not have emerged. Contrary to Mr Potter's evidence, it was his responsibility to ensure that Dr Chow provided an expert opinion in the narrow area for which Mr Potter said he retained Dr Chow.
There was nothing unusual or special about the course that was in fact followed by Mr Potter which was, in substance, to obtain a general opinion from a new expert about what the defendants, and Dr Wass in particular, had done in their treatment of Ms Ralston. Mr Potter may not have initially intended that result, but when the new opinion emerged by reason of his unorthodox approach, he seized it. However, that does not make those circumstances exceptional within the meaning of the rule.
As was made clear in Yacoub, it is necessary to keep in mind the rationale of UCPR r 31.28 and the objectives in the management of civil litigation in ss 56-59 of the Civil Procedure Act. The rationale of r 31.28 and the objectives in ss 56-59 tell strongly against the circumstances in which Mr Potter obtained these reports being exceptional warranting leave being given to rely upon them. I do not accept the plaintiff's submission that the rule was introduced only to ensure that the other side had notice of the expert evidence that was to be led by a party. The rule was also intended for general case management reasons; so much is clear from paragraphs (a) and (b) of subrule (1).

Discretionary considerations

Even if I had been satisfied that there were exceptional circumstances that warranted leave, I would have refused such leave in the exercise of my discretion. That is principally, but not entirely, because Dr Wass died in 2016.
When one has regard to the portions of the redacted first report set out at [72] above that appear in italics, it is clear that the second defendant would be prejudiced to a marked degree in circumstances where Dr Wass is not able to answer the allegations in those parts of the report. It is significant that until Dr Chow's report, the litigation had proceeded on the basis that the reading on the NT was 1.3mm, whereas Dr Chow asserts from his reconstruction and analysis of the image or images that it is 2.2mm. Whilst certainly expert evidence would be able to be called from the second defendant, as senior counsel for the plaintiff asserted, the second defendant would be prejudiced in her defence of the claim when she is not able to call evidence from Dr Wass to explain why she came to the view that 1.3mm was the appropriate reading. Associated with that are the other matters that Dr Chow says Dr Wass failed to do set out in those passages and which needed answering by her.
Quite apart from Dr Wass's death, it must be recalled what the High Court said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [112]-[113]: [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
To those remarks, there must be added a consideration of s 58 of the Civil Procedure Act. A significant consideration when determining what the dictates of justice are when a party is seeking to amend or obtain an indulgence, as is being sought here, is the way that party has conducted the litigation to date.
An analysis of the orders made at various directions hearings shows that there have been repeated failures on the part of the plaintiff to comply with directions. These included answering particulars, service of reports as required by UCPR r 31.36, and compliance with service of liability and causation reports by a number of stipulated dates. It is also significant that on 15 February 2017 the plaintiff was given until 29 September 2017 to serve evidence in reply. Although Dr Sinosich's report was served within the time stipulated by the Court on that occasion, the plaintiffs' solicitor did not even retain Dr Chow until a date some five weeks subsequent to the date on which reply evidence was to be served. Of course, the evidence in Dr Chow's reports cannot be regarded as reply evidence, not the least reason for which is that he was never provided with the report of Dr Sinosich, which was the stated purpose for his retainer, but that simply highlights how egregious is the fault in now serving new evidence in chief in these circumstances.
No satisfactory explanation has been offered by the plaintiff for not having returned to Dr Bryce to respond to the matters raised by Dr Sinosich. Dr Bryce is the plaintiff's principal expert obstetrician and gynaecologist. No explanation has been offered by the plaintiff for having retained a specialist scientist from the United Kingdom in the first instance when the plaintiff now seeks to justify retaining Dr Chow because of issues arising under s 5O of the Civil Liability Act 2002 (NSW), on the basis that it was peer professional practice in Australia that was relevant. It is clear that Dr Sinosich's opinion was obtained to respond to Professor Spencer, yet the plaintiff wished to contend that she needed an Australian specialist to respond to Dr Sinosich.
It is not without significance that these proceedings commenced almost five years ago and that they concern events which took place almost 15 years ago. On 4 October 2017 an order was made for mediation to take place before 30 March 2018. That did not occur, seemingly because Mr Potter retained Dr Chow and was pursuing a subpoena in relation to Dr Wass's qualifications from the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. On 4 April 2018, the parties were directed to mediate by 30 September 2018. Arrangements were made for a mediation on 21 August 2018. On 25 July 2018, the mediation was vacated, seemingly because by that time Dr Chow's reports had been served and an order was made for the filing of the present notice of motion.
Reliance on the reports of Dr Chow and the further report of Professor Spencer would undoubtedly delay these proceedings to a significant degree. I accept that no hearing date has been fixed, although if the proceedings had been conducted expeditiously, such a hearing date would have been fixed. If these further reports could be relied on, it would be understandable that the Registrar would be reluctant to fix a hearing date until the extent of any further evidence in response became available.
The history of the proceedings, including the repeated failures of the plaintiff to comply with directions and orders tells strongly against leave being given to rely on these reports, having regard to s 56 of the Civil Procedure Act.
Senior counsel for the plaintiff submitted that the plaintiff should not be deprived of Dr Chow's evidence by reason of the way the proceedings had been conducted by her lawyers, and that the interests of justice required that the evidence should now be permitted so that the real issues between the parties could be determined.
In my opinion, what was said by the High Court in Aon at [112]-[113] is an answer to that. The further answer is that the interests of justice are not concerned only with the interests of one party but of all the parties to the proceedings.

Conclusion

In my opinion, the plaintiff does not establish exceptional circumstances within the meaning of r 31.28. Had she done so, I would have rejected the application in the exercise of my discretion because of the prejudice flowing from the death of Dr Wass, and because of the history of the proceedings as earlier discussed. As I have noted, there is no objection to the plaintiff relying upon the answer to question 1 in Professor Spencer's report of 1 September 2018, but the plaintiff's application to rely on the reports of Dr Chow and the answers to questions 2 and 3 in that report of Professor Spencer should be refused.
Accordingly, I make the following orders:
Grant leave to the plaintiff to rely on the answer to question 1 in the report of Professor Kevin Spencer dated 1 September 2018.
Otherwise, I dismiss the plaintiff's amended notice of motion filed 26 September 2018.
The plaintiff is to pay the second defendant's costs of the motion.
The proceedings are stood over before Harrison J on 1 February 2019.

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: 21 December 2018

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