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Catchwords: CIVIL PROCEDURE — Time — Extension of time — where plaintiff served expert reports of neonatologist and occupational therapist in medical negligence proceedings — where plaintiff now seeks leave to serve additional reports authored by a different neonatologist and occupational therapist — whether the second neonatologist was shown to have expertise or experience which the first neonatologist lacked — whether the plaintiff should be permitted to rely on reports from two neonatologists — whether it was sufficient to show that the neonatologists had different opinions about a relevant matter — whether the occupational therapists were shown to have relevant experience or expertise which the other lacked — whether it was sufficient that the first occupational therapist did not give evidence about a matter which the plaintiff wished to address — whether the plaintiff should be permitted to rely on multiple experts in the same field

Legislation Cited: Civil Procedure Act 2005 (NSW) s 62
Uniform Civil Procedure Rules 2005 (NSW) rr 31.20, 31.28

Cases Cited: AA v Kesby [2019] NSWSC 1711
Ghalandari v Wesdow Pty Ltd [2026] NSWSC 650
Guerin v Hillier [2020] NSWSC 1322

Texts Cited: Practice Note SC CL 7

Category: Procedural rulings

Parties: Tadgh Spillane bht Niall Spillane (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation: Counsel:
J Smith (Plaintiff)
K Kumar (Defendant)
Solicitors:
Kate Williams Medical Law Specialists (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2022/00233571

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. By notice of motion dated 14 May 2026 , the plaintiff seeks leave pursuant to rr 31.20 and 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) to rely on the evidence of Professor Simon Mitchell (neonatologist) and Ms Erika Skibby (occupational therapist), despite the plaintiff having already served expert evidence from another neonatologist and another occupational therapist.

2. In these proceedings, the plaintiff sues the defendant for injuries he suffered at around the time of his birth. He alleges negligence by midwives at the Royal Hospital for Women who, the plaintiff says, should have told his mother to come into the hospital earlier in her labour. The plaintiff says that the delay in delivery caused a lack of oxygen to his brain which caused a brain injury (hypoxic-ischaemic encephalopathy (‘HIE’)). He was treated after his birth for HIE by therapeutic cooling (also known as hypothermic neuroprotection). The plaintiff’s case is that this did not address, or did not fully address, his injury.

3. Leave is required because the reports are served out of time and pursuant to UCPR 31.28, that leave may be granted in exceptional circumstances. Two overlapping considerations inform the grant of leave:

4. leave to serve is not to be given under r 31.28(3) unless, relevantly, exceptional circumstances warrant a grant of leave; and

5. pursuant to s 62(3)(b) of the Civil Procedure Act 2005 (NSW) and r 31.20(2)(e) of the UCPR, the Court may limit the number of experts in the same or overlapping disciplines.

6. The proceedings are in the professional negligence list, and the parties have drawn the Court’s attention to cll 33 and 34 of Practice Note SC CL 7:

33. 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.

34. In respect of the quantification of damages for death or personal injury, the following indications may be given:

(a) As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to:

(i) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and

(ii) two experts of any other kind.

5. Clause 33 recognises that this “may” require evidence on a particular issue or issues for more than one expert. Clause 34(a)(i) indicates that there will be cases where multiple experts in a given specialty on quantum may be appropriate.

Chronology

6. Relevantly, the plaintiff was ordered to serve any further expert liability evidence (in addition to the expert reports served with his statement of claim) by 28 February 2023.

7. The plaintiff served a report from neonatologist Dr Andrew McPhee on 8 February 2023 and served a supplementary report from Dr McPhee on 3 March 2023. On 2 June 2023, an extension of time was granted so that the service of expert evidence on 3 March 2023 was no longer out of time.

8. In December 2023, quantum assessments, including by occupational therapist Janiata Malone, were proposed for July 2024 when the plaintiff who resides in Ireland was expected to be in Australia. On 27 February 2024, the Court ordered the plaintiff to serve his expert evidence in relation to quantum by 13 September 2024.

9. On 15 November 2024, the Court ordered the plaintiff to serve any further independent expert evidence by 20 December 2024.

10. On 28 February 2025, the plaintiff served expert reports including a second supplementary report from Dr McPhee dated 27 August 2024 and a report from Ms Avril McElwain, occupational therapist, dated 25 September 2024.

11. On 19 March 2025, the plaintiff’s solicitor filed an affidavit dated 18 March 2025, stating that the plaintiff had completed service of his primary expert evidence with the exception of a report from a psychiatrist.

12. On 2 July 2025, the defendant served a report of Janiata Malone, occupational therapist, dated 16 April 2025. On 27 November 2025, the defendant served expert reports including a report from Professor Jeanie Cheong, neonatologist, dated 26 November 2025.

13. As I have indicated, the plaintiff now seeks to rely on the additional evidence from neonatologist Professor Mitchell and occupational therapist Ms Skibby.

14. Expert evidence has not closed altogether. On 8 May 2026, the Court noted that the plaintiff is undergoing a formal autism spectrum disorder assessment which will conclude by August 2026. The need for such an assessment was foreshadowed by the rehabilitation paediatrician jointly retained by the parties, Dr Hasnat. A report from Dr Hasnat is expected following completion of the autism spectrum disorder assessment.

Other decisions of this Court

15. The parties drew the Court’s attention to a number of authorities although accepted that each case will turn on its own facts. The Court was taken to Justice Chen’s decision in Ghalandari v Wesdow Pty Ltd [2026] NSWSC 650, where Chen J made the following observations:

17. In personal injury proceedings being managed in the Common Law General List, if a party intends to adduce expert evidence at trial, or it becomes apparent to them that any other party intends to do so, they must seek directions from the Court permitting this: r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

18. In the ordinary case, directions enabling parties to rely upon expert evidence are unexceptional, routinely made and reflect the basic yet fundamental principle that each party must be given a reasonable opportunity to present its case: r 31.20.

19. Where, however, a party intends to adduce evidence from a second or subsequent expert of the same discipline, addressing the same issues as the first, different considerations apply. In that situation, the Court has the power to limit the number of expert witnesses relied upon in the proceedings. Two sources of that power are s 62(3)(b) of the Civil Procedure Act 2005 (NSW) (‘CPA’) and r 31.20(2)(e) of the UCPR.

…

33. Further, broader case management considerations (ss 56-58 of the CPA) all point in the same direction. The interests of justice do not support the retention of multiple experts in the same discipline addressing the same questions in this case; on the contrary, they support the orders sought by the defendant.

34. There is a final matter. The efficient case management of proceedings is enhanced by the co-operation of the parties in those processes and by the parties assisting the Court in the exercise of its functions, consistent with their obligations in s 56(3) of the CPA. In a situation such as this, the unqualified expectation of the Court is twofold: first, a party seeking to retain a second or further expert in the same discipline will, prior to seeking such an order, disclose their intent to do so to the opposing party in a timely way, and provide a clear explanation for that proposed course; and, secondly, when seeking any directions for the service of expert evidence, the intent to qualify such second or further expert will be disclosed to the Court. Neither expectation was met in this case – thereby necessitating the current application.

16. The plaintiff stresses that these observations arise in the context of a different list and should not necessarily be taken to apply in the professional negligence list. I accept it is relevant to take into account that the nature of the proceedings and the context including the applicable practice note in exercising the powers the Court is asked to exercise in this case.

17. While I do not regard Chen J as laying down rules of strict and general application – and the Court of course is not concerned to parse a judgment as though it were a statute – nevertheless I accept the defendant’s submission that, even in this list, the considerations identified at [19] and [33] to [34] arise. I also agree that the Court’s expectation, where evidence in relation to a particular issue is closed and a party is considering adducing further expert evidence, is that it will be raised earlier than the service of the evidence. Where a party has purportedly served all their evidence on a particular issue, the considerations identified by Chen J will generally require that party to raise the prospect of retaining another expert in the same field, so that the matter can be considered between the parties, and if necessary by the Court, before the cost of retaining the new expert is incurred.

18. The Court’s attention was also taken to Justice Fagan’s decision in Guerin v Hillier [2020] NSWSC 1322, where Fagan J held that the Court limits experts where their reports overlap or cover precisely the same ground, or are merely repetitive without adding anything. Again, I do not read Fagan J as laying down strict rules or suggesting that where those preconditions are not satisfied, the Court will, as a matter of course, allow any such evidence.

19. In AA v Kesby [2019] NSWSC 1711, Justice Wright limited a party to two experts because there was “no suggestion of any relevant differences or nuances”. I will return to what the plaintiff relies on as relevant differences or nuances in this case.

20. Each case will turn on its own facts. These authorities to which the Court was taken highlight that the Court will exercise its powers to control the proceedings to avoid the potential unfairness and wasted time and cost of experts who give evidence in the same fields, but that multiple experts may be permitted in certain circumstances.

Plaintiff’s explanation

Professor Mitchell

21. The plaintiff says the evidence of Professor Mitchell is necessary because the plaintiff needs an opinion from an expert with expertise and experience not only in HIE but also current knowledge in relation to foetal inflammatory response syndrome (‘FIRS’), cooling therapy for HIE and outcomes following therapeutic cooling.

22. I accept the plaintiff’s submission that the evidence is responsive to Dr Cheong’s report.

23. The plaintiff says the defendant advanced its inflammatory-cause theory for the first time in its expert evidence served out of time on 27 November 2025. The defendant accepts that it did not plead or particularise this alternative cause. The defendant’s anatomical pathologist, Dr Chan, opined that the injury was caused by FIRS in June 2024, and the plaintiff’s first neonatologist, Dr McPhee, responded to that in August 2024. Nevertheless, the defendant’s neonatology expert evidence on this issue, which provided a considered analysis for why the injury might be caused by the one condition rather than the other, was advanced for the first time by the defendant in November 2025. In those circumstances, I am satisfied that the plaintiff should have an opportunity to respond to that evidence.

24. However, it does not follow that the interests of justice require – let alone that exceptional circumstances have been shown warranting – the plaintiff being permitted to adduce evidence from two experts who have the same or substantially the same expertise.

25. The defendant’s contention in the substantive proceedings is that the injury was caused by FIRS arising from chorioamnionitis and funisitis (ie, an inflammatory and infective process of the placenta and umbilical cord) rather than by a lack of oxygen that an earlier delivery would have avoided.

26. The plaintiff, in seeking to rely on Professor Mitchell’s evidence, draws attention to a statement by Dr McPhee in his report, responding to Dr Chan, stating that Dr McPhee “profess[es] no specialist pathology skills and fully acknowledge[s] the placental histology findings of *‘*fetal and maternal inflammatory response grade 2, stage 2(intermediate stage, moderate acute response)**’.”

27. It is appropriate to note that the defendant’s neonatologist, Dr Cheong, started by identifying the histopathology findings. Dr Cheong then offered an opinion about what those findings indicate about whether FIRS or HIE was the cause of the injury. Dr McPhee does the same thing in his responsive report.

28. The new report from Professor Mitchell on which the plaintiff seeks to rely takes the same approach. Professor Mitchell does not challenge the histopathology findings. He, like Dr McPhee, accepts that the pathology evidence indicates FIRS (which Professor Mitchell describes evidence of “acute chorioamnionitis and funisitis”), and notes that the cause is unclear, simply saying the most commonly identified cause is ascending infection. Professor Mitchell, like Dr McPhee and Dr Cheong, offers a view, on the assumption of that pathology, about whether FIRS or HIE is the more likely cause of the injury.

29. As the defendant points out, the plaintiff has not served evidence from a pathologist who offers any different opinion from the evidence of the defendant’s pathologist, Dr Chan.

30. The evidence before me does not establish that Dr McPhee lacks expertise assessing the causative role of FIRS in an injury like the plaintiff’s.

31. The plaintiff also says it wants an expert in cooling therapy and outcomes following therapeutic cooling, a matter adverted to by Dr McPhee. I will return to those matters.

32. The defendant says that the plaintiff has been on notice of the defendant’s position on FIRS since the service of Dr Chan’s report in June 2024, although I refer to my observations above in that regard. The defendant points out that although Dr McPhee in his report of 27 August 2024 said that he did not have “specialist pathology knowledge”, he still answered questions about the placental pathology, whether it was an independent cause of brain damage, and whether Dr Chan’s report caused him to alter his previously expressed opinions.

33. I do not accept that Dr McPhee lacks the expertise to comment on FIRS, the causal impact of placental pathology or therapeutic cooling.

34. Dr McPhee in his first report gave evidence about the role of therapeutic cooling (which he describes as hypothermic neuroprotection). As to FIRS, as I have indicated in his report responding to Dr Chan, he gave evidence about the causal impact of FIRS. The issue is not one of pathology skills but of considering likely causation once that pathology has been identified. Dr McPhee gives considered opinions about that without suggesting any limit or qualification on his ability to do so.

35. I have received evidence of published decisions in other proceedings in which Dr McPhee is recorded as having given evidence on therapeutic cooling, chorioamnionitis and inflammation in causing neonatal brain injury. The plaintiff stresses that the earlier decisions about proceedings in which Dr McPhee had given evidence were published in 2005 and 2007, and only reflected the state of knowledge at that time. This is undoubtedly true, but in the face of that evidence and Dr McPhee’s practice since that time, nothing before the Court suggests that these issues should be regarded as sub-specialties that are outside Dr McPhee’s expertise. The fact that he gave evidence about the causal impact of chorioamnionitis and about the use of hypothermic neuroprotection indicates the contrary.

36. Professor Mitchell’s curriculum vitae does not suggest special expertise in FIRS, placental pathology or cooling beyond what Dr McPhee might be expected to have. The plaintiff relies on the fact that Professor Mitchell, before his retirement in 2022, practised full time in a clinical role whereas Dr McPhee was only part time, 0.5 full time equivalent, and that Dr McPhee was State Director of Neonatal Medicine, South Australia, from 2013 to 2018 and so had an administrative role. The evidence does not suggest that Dr McPhee’s role was solely administrative when he was State Director, and the plaintiff confirmed he relies on Dr McPhee for his clinical experience. His CV describes his directorial role as being “clinical”.

37. The plaintiff also relies on the fact that Professor Mitchell and Dr McPhee give different opinions about the causal role of FIRS. Professor Mitchell says that if FIRS played a role, he would expect to see indications that do not appear in the evidence, while Dr McPhee opines that FIRS played a role by increasing the plaintiff’s sensitivity to the HIE.

38. To the extent that these are different possible causal explanations, it is not obvious that it reflects a difference of expertise or discipline from either doctor. Rather, it is a situation where there are multiple experts in the same field having different opinions. I take on board that Guerin v Hillier and AA v Kesby were both concerned with a situation where the judge observed that there was nothing that the second expert added and the plaintiff said that this was not the case. Nevertheless, each case will turn on its own facts. Material considerations of fairness, cost and delay arise when two experts in the same discipline are relied upon by the same party even if that party can point to the nuances or differences between the opinions of each expert.

39. I am not satisfied that Professor Mitchell has been shown to have a sub-specialty that warrants permitting the plaintiff to rely on the evidence of both Dr McPhee and Professor Mitchell. Further, on the plaintiff’s own case, Professor Mitchell has relevant expertise in all matters – there is no suggestion that Professor Mitchell lacks expertise in any relevant neonatology matter.

40. Considerations of fairness, and appropriate use of Court time and party resources, all militate against granting the leave the plaintiff seeks. The plaintiff should be permitted to adduce evidence from one neonatologist and not more than one. If the plaintiff wishes to rely on Professor Mitchell’s report, that should be on terms that involve the plaintiff not relying on the reports of Dr McPhee (as well as appropriate costs orders being made).

41. The defendant opposes the plaintiff being permitted to rely on Professor Mitchell at all, saying the plaintiff should be held to what the defendant describes as an election to retain Dr McPhee. The difficulty with this is that Dr McPhee was retained before the defendant had pleaded or particularised its reliance on FIRS as the real cause of the plaintiff’s injury.

42. The defendant also says that it will suffer prejudice because Dr McPhee’s evidence is “embedded” throughout the other evidence served by both parties, which variously incorporates or responds to Dr McPhee’s opinions. There is force in this. While this prejudice might be remedied in part by an appropriate costs order I accept that it is a significant consideration. I have placed real weight on it. Nevertheless, I accept that the service of Dr Cheong’s report by the defendant may have materially changed the forensic landscape and, as I have said, this causation point was not one which was pleaded or particularised by the defendant from the outset of these proceedings.

43. The Court frequently needs to grapple with a situation where a party does not rely on a particular expert even though that expert’s evidence has been addressed and incorporated in, or responded to by, other evidence. It is also not uncommon for parties to find themselves having to change experts at relatively late stages in proceedings. This is undesirable, can add complexity and is not to be encouraged. However, it is a prejudice that the Court is familiar with. In the present case, the matter has not been set down for trial, indeed as I indicated above, the Court has noted that there is at least one jointly retained expert still to opine on some matters, being Dr Hasnat who is expected to give an opinion based on a formal autism spectrum disorder assessment which is currently underway. The autism spectrum disorder assessment is expected in August 2026.

44. I recognise that changing an expert after consequential evidence has been served can increase complexity. In appropriate matters the Court may well refuse to permit a party to do so. But on the facts of this case, it seems to me that matter is sufficiently addressed by a costs order in circumstances where the alternative would be to prevent the plaintiff from advancing the factual case sought to be advanced in Professor Mitchell’s report.

Ms Skibby

45. The plaintiff seeks the additional occupational therapy report because the plaintiff says his first occupational therapist, Ms McElwain, did not address his care needs or quantify them. The plaintiff also relies on the fact that Ms McElwain practises in Ireland whereas Ms Skibby and the defendant’s expert, Ms Malone, practise in Australia. The plaintiff is being raised in Ireland.

46. The submission that Ms McElwain does not address the plaintiff’s care needs is not entirely supported by the evidence. Ms McElwain identifies a number of care needs that the plaintiff has. However, Ms McElwain does refer to a proposed Nursing Care report in relation to additional domestic assistance and says that the need for a case manager is typically considered by a nursing care consultant, to whose recommendations Ms McElwain defers.

47. Ms McElwain as at September 2024 clearly considered she should defer to an anticipated report from a nursing care consultant, but the plaintiff never adduced evidence from that person.

48. An explanation of this was provided from the Bar table, being that in Ireland the practice is for daily care needs to be assessed by a separate nursing care consultant. While that does not appear to be disputed by the defendant, there is nevertheless no evidence that Ms McElwain lacks the necessary expertise to offer an opinion about this.

49. Furthermore, even if Ms McElwain did lack the expertise, there is no evidence that Ms Skibby lacks the expertise to give evidence about all relevant occupational therapy matters.

50. The plaintiff says that Ms McElwain gives an Irish perspective, relevant because the plaintiff is being raised in Ireland. There are two aspects to this Irish perspective which the plaintiff raised. One is Ms McElwain’s observation about the plaintiff in his home. The difficulty with this is that, while it may be common for such evidence to be given by occupational therapists, strictly it is a matter for lay evidence. The other aspect is Ms McElwain’s ability to give evidence about what kinds of services are available in Ireland. The plaintiff did not point to any part of Ms McElwain’s report that gave evidence about services unique to Ireland or available in a different form in Ireland, or anything of that kind. Furthermore, to the extent that the approach to care and support in Ireland is different from the approach to care and support in Australia, that only serves to reinforce the limited forensic value of Ms Skibby’s report, which is a matter for the plaintiff’s own forensic judgment in wanting to rely on Ms Skibby.

51. The plaintiff also relies on Ms Skibby because she quantifies the plaintiff’s care needs. There are several difficulties with this. Ms Skibby does so by reference to Australian services provided in the Australian market. It is not clear how that will assist the Court given that the plaintiff is being raised in Ireland. It is further not clear to me why quantification is a matter for an occupational therapist. To the extent that this is an appropriate matter for an occupational therapist, there is no evidence that Ms McElwain or Ms Skibby have any limit in their ability to give relevant expert evidence.

52. The plaintiff drew attention to the fact that the defendant’s occupational therapist gives evidence by reference to Australian rates, but the defendant in submissions before me acknowledged that that part of the defendant’s report will not assist the Court. I accept the defendant’s submission that that matter being addressed by the defendant’s occupational therapist does not provide a sufficient basis for the plaintiff relying on multiple overlapping experts.

53. As with the two neonatologists, considerations of fairness and appropriate use of Court time and party resources all militate against granting the leave the plaintiff seeks. The plaintiff should be permitted to adduce evidence from one occupational therapist and not more than one. If the plaintiff wishes to rely on Ms Skibby’s report, that should be on terms that involve the plaintiff not relying on the reports of Ms McElwain (as well as appropriate costs orders).

54. The defendant opposes the plaintiff being permitted to change experts. I am satisfied that, in the circumstances of this case, leave to do so is warranted, provided it does not lead to evidence being adduced from more than one occupational therapist. Ms McElwain’s evidence was always clear that nursing care costs were not to be addressed in her report. The plaintiff did not take steps to address that apparent lacuna at or shortly after the time the report was served.

55. While the defendant sought to persuade me that Ms McElwain is more likely to assist the Court than Ms Skibby because she practises in Ireland, that appears to me to be a forensic judgment for the plaintiff. The defendant has not itself adduced evidence from an Irish occupational therapist and the fact that Ms Skibby has only assessed the plaintiff remotely might be relevant to weight but if anything, it is likely to operate at trial in the defendant’s favour. Of equal significance, the defendant accepts that the autism spectrum disorder assessment is expected in August 2026, and that the outcome of this assessment will be relevant to the further report of Dr Hasnat. The defendant also accepts that this, in turn, will be relevant to what either party’s occupational therapist expert has to say. This means there is a significant prospect of supplementary occupational therapy evidence after August 2026 in any event. In those circumstances, I am satisfied there are exceptional circumstances warranting a grant of leave to permit the plaintiff to rely on the evidence of Ms Skibby, but only on terms that mean the plaintiff will be permitted to rely on evidence from one occupational therapist not two.

Costs

56. The plaintiff seeks that costs be costs in the cause. The defendant seeks and order that the plaintiff pay the defendant’s costs of the notice of motion. The defendant relies on the fact that the plaintiff did not give notice that he was considering retaining additional experts. I accept this is relevant and it is a matter I have referred to above, but I am not persuaded it is sufficient to warrant any order other than costs in the cause in circumstances where neither party has enjoyed complete success. The debate has been relevant to the shape of the proceedings going forward and I have taken a course that gives the plaintiff some of the relief he sought but not all of it, and on terms which he resisted.

57. As for the appropriate costs order to reflect the leave granted to the plaintiff to change experts, the parties were ultimately agreed as to the form of order the Court should make.

58. Accordingly, I make the following orders:

59. Pursuant to rr 31.20 and 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff has leave to serve expert liability evidence from Professor Simon Mitchell.

60. Order (1) is made on the condition that the plaintiff does not rely upon the following expert reports already served upon the defendant in these proceedings, being;

(a) the Report of Dr Andrew McPhee dated 8 February 2023, (b) the Supplementary Report of Dr McPhee dated 3 March 2023, or (c) the Second Supplementary Report of Dr McPhee dated 27 August 2024.

3. Pursuant to rr 31.20 and 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff has leave to serve expert quantum evidence from Ms Erika Skibby.
4. Order (3) is made on the condition that the Plaintiff does not rely upon the Report of Ms McElwain dated 25 September 2024.
5. Costs in the notice of motion are costs in the cause.
6. The plaintiff is to pay the defendant’s costs thrown away by reason of the plaintiff changing experts from Dr McPhee to Professor Mitchell and from Ms McElwain to Ms Skibby.

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