• there was no statement of agreed fact or assumption as to the existence or otherwise of the matters concerning seeding as discussed above.
40 There is a real question as to whether the joint expert report can or should itself operate or be allowed to operate as a restricting factor on the discretionary power in the Court to grant an amendment to pleadings. As I proceed to examine below, in medical negligence litigation where there is an important contested medical fact in issue, it will often be the case that the experts' conference process under the Rules will not be appropriate and, generally speaking, will not be ordered. Where there is somewhat belatedly identified an important matter of medical fact which is sought to be introduced by amendment subsequent to a joint expert report, should the report nonetheless have primacy so as to exclude the fact from being litigated?"
15 His Honour went on to refer to cases in which contested applications for the appointment of joint conferences were considered and in which the principles to be applied were considered: see Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930; Booth v Di Francesco [2002] NSWSC 154; Spasovic v Sydney Adventist Hospital [2002] NSWSC 164; and Habelrih v Szirt [2004] NSWSC 54.
16 His Honour went on to determine that the experts had not considered at their meeting the contention sought to be raised in the amended pleadings and concluded that the joint experts' report and its content should not stand in the way of the amendment to the pleading sought and granted.
17 It is to be noted that the amended pleading concerning which leave was granted asserted as a particular of damage suffered "coning due to lumbar puncture on 13 January 1991" (see para 36(b)). The joint report, of course, reached a contrary conclusion and the above particular cannot be pursued in this Court without leave. Indeed, this is the matter at the very heart of the present application. The plaintiff now has, from more than one source, expert evidence that there was coning due to the lumbar puncture and that this caused brain damage. The plaintiff wishes to introduce such evidence, and this is at the centre of the leave application.
18 One of the orders sought on the motion considered by Hall J was that leave be granted to rely upon certain expert reports addressing the coning issue. His Honour did not deal with that application but stood it over to a date to be fixed. No step was taken to fix a date and the issue, regrettably, has remained unresolved until the present time.
19 In resisting the leave application, Mr McCulloch drew attention to the policy reasons behind the relevant rule, and these I have identified above. He submitted that there was a need for the Court to control its own process and no reason had been shown as to why the plaintiff should be entitled to call in aid evidence other than that relied upon from Dr Hopkins at the time he was asked to attend the expert conference. He submitted that the Court should have regard, not only to the purpose of the conference that was held, achieving as it did a narrowing of the issues and a shortening of the likely trial time, but also to the consideration that if leave is granted the time to be occupied by this hearing, with its attendant costs, will be considerably increased. Mr McCulloch further referred to the costs incurred concerning the conference, and I accept in this regard the unchallenged evidence of Ms Sullivan in her affidavit of 25 July 2006 that the defendants' costs alone associated with the expert conference were approximately $22,000-23,000.
20 For his part, Mr Hall submitted that the conference process was flawed by reason of the manner in which issues were presented for consideration by the experts and that the questions were so framed as to preclude exposure of the reasoning process behind the answers. As to this, I draw attention at once to Practice Note 121 para 6, with which I am satisfied there was here compliance. Paragraph 6 requires that questions be framed in such a way as to be answered, if possible, with a "yes" or "no" answer or, if not, then with a very brief response.
21 I do not accept the submission that the process pursuant to which the experts here conferred was a flawed process.
22 Mr Hall submitted that the panel of experts lacked balance because the plaintiff had no neurological expert on it. The constitution of the panel was a matter as to which the plaintiff, through her experienced solicitor, had input, and I am not persuaded that there is substance in this submission.
23 Mr Hall further submitted as to the deliberations of the panel that it seems that Professor Jones brought with him to the joint appointment x-ray films from the hospital. That appears to be so, and Ms Walsh, who gave evidence on this application, gave evidence that, as the solicitor for the plaintiff involved in this expert conference, she was alert to, and agreed to, those films being considered by the doctors. It seems, however, that the films have since been mislaid, and Mr Hall submitted that it was unfair to the plaintiff to be confined to the report, influenced as it was by x-ray films that the plaintiff had no opportunity of considering.
24 Mr Hall submitted further that it would be unjust to the plaintiff if the plaintiff was deprived of the opportunity now of having the Court consider the further expert material that has become available to her on this coning issue. The plaintiff is a person who, it is submitted, suffers from very grave disabilities and that the Court should take this into account in assessing the issue now to be determined.
25 I accept that it is a relevant matter that the plaintiff is suffering from grave disabilities, but it is to be observed, unhappily, that this is the case concerning many plaintiffs in this Court in whose cases the operation of this rule is enlivened.
26 Finally, Mr Hall submitted that the plaintiff, having been allowed by reason of the decision of Hall J to amend her statement of claim and to raise what his Honour there referred to as "the new contention", experts have been qualified and will be giving evidence as to that new contention. He submitted it would be unreasonable and unsatisfactory if those witnesses who considered that there had been coning associated with the lumbar puncture were confined to ignore that perceived contributor to the plaintiff's brain damage when addressing the issue as to what brain damage was considered to have been referable to any different treatment brought about by the delay in detecting the tumour. Mr Hall submitted that it would be better and fairer if the opinions of these experts could be considered according to the basis upon which those opinions were formed rather than on the basis of assuming, contrary to the opinions in fact held by them, that there had been no coning and brain damage associated with the lumbar puncture.
27 I have considered the medical evidence, and in particular that concerning which leave is sought, with the above submissions very much in mind.
28 A matter relevant to be considered in the exercise of my discretion is whether the plaintiff has now available medical evidence to support the assertion that the lumbar puncture ought not to have been undertaken when it was and that its performance was causative of harm. If there was now no such evidence available, then the grant of leave would be futile and plainly unjustified.
29 There is available to the plaintiff expert opinion supporting the issues that the plaintiff wishes to pursue if leave is granted. Dr Berry, in his report of 28 October 2003, declined to comment concerning the role of the lumbar puncture and the neurological deterioration that followed, and Dr Knight, paediatrician qualified by the plaintiff, does not, in his reports of 22 April 2002 and 13 June 2006, express the opinion that the lumbar puncture caused deterioration. However, there is support for the issues that the plaintiff seeks leave to advance from Dr George Williams, consultant paediatrician, particularly in his report of 26 May 2006. There is further support from Dr Wallace in his report of 25 November 2005 and from Dr Lindsay Smith, neurologist, in his report of 23 October 2005. Finally, added support is afforded by Dr Klug, neurosurgeon, in his reports of 21 January 2004 and 11 February 2005.
30 That the plaintiff now has expert evidence is not determinative of the issue as to whether there should be a grant of leave, but it is a relevant consideration.
31 Of particular significance on this application is that as a consequence of the decision of Hall J granting leave to amend the statement of claim, the medical issues in this case have broadened from those perceived to arise when the joint conference of experts took place. The amendment introduced the further issues as to whether the timing of radiotherapy and the dosage here employed were significantly different from what would have been necessary had an early diagnosis been made, and whether, as a result, the harm suffered was greater than it otherwise would have been. Interwoven with this is a consideration of what the plaintiff's condition would have been immediately prior to the commencement of treatment at the differing points of time, that is when the treatment was commenced and when it ought to have been commenced. Whether or not there was coning, and if so why and when, is a matter of significance, and I consider there is some force in Mr Hall's submission that experts to be called by the plaintiff addressing the issues arising under the amended statement of claim ought not to be required to do so proceeding on an assumption that the lumbar puncture caused no coning and associated damage when that is contrary to opinions in fact held.
32 Of course, if leave is granted, the defendants are deprived of the certainty of the outcome on the issues addressed in the experts' report of August 2002. However, the authors of that report are available to give evidence.
33 The medical issues in this case are very complex, but the conclusion I have reached after close consideration of that evidence to which my attention has been directed, is that I should grant leave to the plaintiff to introduce evidence inconsistent with the content of the joint report. I have concluded that there are exceptional circumstances arising by reason of the nature and complexity of the medical issues which now arise that warrant the grant of leave, and that to do justice between the parties such grant is necessary. I propose to make it a condition of the grant of leave that the plaintiff calls Dr Hopkins, who attended the joint conference on behalf of the plaintiff. The defendants should have the opportunity of cross examining that witness.
34 Accordingly, I grant leave to the plaintiff to adduce expert evidence inconsistent with the content of the joint experts' report concerning the lumbar puncture on 13 January 1991 and whether it caused or contributed to coning.
35 It is a condition of the grant of leave that the plaintiff calls Dr Hopkins to give evidence. I reserve all questions of costs arising from the grant of leave. It has to be recognised that as a consequence of the grant, justice may require a special order concerning the costs incurred in relation to the joint conference, and in relation to time that may be occupied now at this trial in addressing issues arising pursuant to the grant of leave. These questions are best to be addressed after judgment has been delivered following the conclusion of the hearing, when the parties will be afforded the opportunity of presenting submissions as to costs.
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