HIS HONOUR: In these proceedings the plaintiff claims damages arising from injuries said to have occurred during the course of surgical treatment provided to her by the defendants, being the surgeon and the relevant Local Health Network. It is her case that, during a laparoscopic parathyroidectomy, she suffered injury to her oesophagus and laryngeal nerve. As a result, it is alleged, she has difficulty speaking and swallowing and suffers psychological sequelae. She claims damages for non-economic loss, care and assistance and loss of earning capacity.
Liability is disputed. Expert reports in relation to breach of duty and causation have been exchanged, and the parties have reached agreement concerning a conclave of experts on those issues. On damages, there is also agreement as to a conclave of psychiatrists, but not as to the remaining expert reports on that issue.
The plaintiff has served a report of Mr Shyam Iyer, psychologist and vocational assessor, and Ms Rachel Morris, occupational therapist. The defendant has served two reports of Associate Professor Richard Jones, rehabilitation physician, and in reply to that report the plaintiff has served a report of Dr Lorraine Jones, also a rehabilitation physician.
The parties are at odds as to a joint conference of these experts. The defendants' position is that all four should participate in such a conference because, although they do not share the same expertise, there is a measure of overlap between the issues upon which they give their opinions. The plaintiff's position is that there should be a joint conference only of the two rehabilitation physicians, on the basis that Mr Iyer and Ms Morris are not experts in the discipline of rehabilitation medicine and, in addition, the expertise of each of them is different from that of the other. Before me is a motion by the plaintiff to that effect: that is, that there be a joint conference between the rehabilitation physicians but that neither Mr Iyer nor Ms Morris should be required to attend it.
Mr Iyer interviewed the plaintiff and examined various medical reports. In particular, he obtained information from her about her work history and psychological factors bearing upon her work capacity. The principal focus of his report is his opinion about the relevant labour market and the plaintiff's employment options if she were unable to maintain her current employment. He expressed the view that she may not be able to do so due to her impairments.
In her report Dr Jones expressed the view that the plaintiff would have problems getting a job because of the condition of her voice, which she saw as confirmed by Mr Iyer's report. However, Associate Professor Jones did not agree. In the last page of his first report he expressed his view succinctly, saying that she presented as a motivated person and that, with some minor modifications, she could and should continue her current employment. For the purpose of his second report he was supplied with documentation which, as I understand it, included Mr Iyer's report. He merely said that that material would not alter his opinion.
Ms Morris based her lengthy report upon medical opinions to which she had access, together with her interview of the plaintiff and her functional assessment of her at her home. The report does not comment upon the plaintiff's work situation, but deals with her need for care and domestic assistance in a number of respects. Ms Morris recommended a regime of assistance, assessments and equipment. She also recommended certain house modifications because of a condition suffered by the plaintiff in her left shoulder. However, neither Dr Jones nor Associate Professsor Jones considered that that condition was referrable to the thyroid surgery.
For that reason, Dr Jones could see no reason for the house modifications. Otherwise, however, she supported the regime of care recommended by Ms Morris. The reports of Associate Professor Jones also deal briefly with this issue. He expressed the view that the plaintiff would have required limited personal care and domestic assistance for a period of a few months after the surgery, but that she is currently capable of personal care and domestic activities to the same extent that she had been prior to the surgery. He disagreed with the assessment of Ms Morris.
The procedure of a joint conference between expert witnesses is dealt with in UCPR Pt 31, especially r 31.24. Counsel also took me to two relevant practice notes, SC Gen 11 and SC CL 5. However, it is not necessary to examine these provisions for present purposes. The question to be determined is which of the approaches advocated by the parties is the fairer and more efficient.
Counsel for the defendants, Ms Young, referred to two cases in which an issue of this kind arose: Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883 and Avery v Flood [2013] NSWSC 996. Both were medical negligence cases in which there was disagreement as to the composition of conclaves of medical experts on the issues of breach and causation.
Put shortly, in Porter v Le Harrison J ordered three joint conferences of medical experts directed to different aspects of the issue of liability, but each requiring the attendance of medical practitioners with different specialties. At [29] his Honour said, "The fact that all experts at a joint conference are neither similarly qualified nor similarly specialised is a fact of life in all litigation that depends on the assessment of technical issues." His Honour added at [30]:
"It should be observed that my preference for issues-based joint conferences of experts in these cases does not foreclose a different approach in other circumstances. It is obviously not only not possible, but also dangerous, to say as an immutable proposition that agreement from a joint conference constituted by experts in one field is any more or less likely to produce agreement than a joint conference of experts in differing fields. Each case must depend upon its own particular facts. I am simply not satisfied that the search for answers exposed for consideration by the issues in these cases will be confounded by interdisciplinary conferences of experts burdened with that task."
However, as counsel for the plaintiff, Mr Maybury, noted, Harrison J was dealing with joint conferences of experts all of whom were qualified in the field of medicine. His Honour said, also at [29], "I do not accept that medical experts in particular areas of specialty are the inevitable captives of their particular disciplines."
In Avery v Flood Beech-Jones J also addressed the question of conclaves of medical witnesses of differing specialties. Again put shortly, his Honour determined that there should be separate conclaves on the issues of breach and causation, and decided which of the experts should attend each of them with an eye to the extent to which their reports had dealt with each issue and their qualification to express an opinion about them. At [14] his Honour said:
"As a general proposition, it seems to me that, if a particular expert expresses an opinion on a particular point, then they should generally be required to participate in a conclave with all the other experts who address that issue. Equally, an expert who does not in their report profess an opinion on a particular topic or area should not be required or directed to attend a conclave in respect of a different area. The latter course is likely to lead to one of two results. Either the expert will have their time wasted, or they may end up professing an opinion on a topic they are either not qualified to or, if they are, there will be no underlying reasoning in any report extraneous to the joint report which justifies the opinion they have given."
Ms Young relied on the undoubted measure of overlap between the reports in the present case and argued that, notwithstanding the difference in the expertise involved, a joint conference could have the benefit of achieving a measure of consensus about the plaintiff's need for care and the measures which might be taken to achieve it, and her employment prospects. She noted the consideration by Ms Morris of the plaintiff's shoulder condition, and the issue whether that condition was attributable to the surgery, arguing that that was a matter worthy of discussion in a joint conference between Ms Morris and the rehabilitation physicians. She also argued that the lack of an opportunity for this matter to be addressed at a conclave could give rise to unfairness at the trial, citing Avery v Flood at [18].
I have given these matters careful consideration, but I am persuaded that the proper course is that for which Mr Maybury contended. Notwithstanding the fact that this aspect of the plaintiff's claim for damages raises overlapping issues dealt with in the subject reports, it appears to me that the disparate expertise of the authors of those reports counts against a joint conference. This is a case in which the observations of Beech-Jones J in Avery v Flood at [14], quoted above, are apt. In particular, if there proves to be an issue whether the plaintiff's shoulder condition is attributable to the surgery, that is a matter upon which Ms Morris clearly is not qualified to express an opinion and no purpose would be served by consideration of the matter in conclave with the rehabilitation physicians.
Accordingly, the plaintiff's motion should succeed. At the hearing of the motion a question arose as to the appointment of a facilitator. Ms Young's position was that there should be a facilitator for the conclave on liability and, if her submission were accepted, the conclave the subject of the present motion. She did not seek a facilitator for the conclave of psychiatrists. Mr Maybury argued that a facilitator was not required for either conclave.
Given my decision in the present motion confining the joint conference to the rehabilitation physicians, there is no need for a facilitator for that purpose. As to the liability conclave, I was told that three experts are involved, each of them forensically experienced, and that there are differences of opinion which may be intractable. The defendants have proposed three senior counsel as facilitators, all of whom are experienced in the area and are agreed to be suitable. However, I do not have enough information about the issues to determine whether a facilitator is necessary. As Mr Maybury pointed out, to engage any of them for that purpose would be an expensive exercise.
At this stage I am not prepared to direct the attendance of a facilitator at that conclave. The parties have liberty to apply if they wish to be heard further on that issue and if, generally, further directions are required. I shall also consider any submissions on the costs of the motion if there is an issue about that.
My order is in the terms of paragraph 1 of the plaintiff's motion, that is, that Mr Shyam Iyer and Ms Rachel Morris are not required to participate in the joint conference between Associate Professor Richard Jones and Dr Lorraine Jones.
[3]
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Decision last updated: 02 September 2015