This is day eight of a claim for damages for personal injury arising out of alleged medical negligence. The plaintiff, Mrs Tinnock, claims that the surgical treatment she received at Wagga Wagga Base Hospital for the treatment of an incisional hernia was negligent, resulting in severe complications, including a recognised but, on her case, avoidable complication of mesh infection. Her claims are hotly contested by the defendant.
As part of her claim for damages she relies upon a consequential psychiatric illness. She has been examined, in her own case, by Dr Akkerman and, for the defendant, by Associate Professor Robertson. Those medical practitioners met in conference, under the rules, in February last year, prior to the anticipated listing of the matter in March of 2015. My previous interlocutory judgments explain the history of the matter since then.
The psychiatrists agreed that Mrs Tinnock suffers from a psychiatric condition, and appeared to have agreed that it was caused by the surgical complications to which I have referred. From the point of view of the defendant, this represented a change in Associate Professor Robertson's opinion, which had developed over time from the view that the surgical complications had caused the psychiatric condition he diagnosed; to the view that it was one of a number of factors, including social and family stresses; to a view finally formed in January 2015 that the surgical complications had receded as a cause and been overtaken by the social and family stresses to which I have referred.
It was expected that the psychiatrists might give concurrent evidence last Thursday; but, because of the necessity to decide a number of interlocutory questions before the commencement of the trial proper, their evidence had not been reached by then. However, Mr Barnes of Counsel for the defendant flagged his understanding that the joint report recording the apparent agreement about cause, did not actually represent Associate Professor Robertson's opinion. That matter was fully debated before me yesterday.
For reasons I explained in the matter of Kiely v AAT Port Kembla [2016] NSWSC 66, when such a difficulty arises Practice Note SC Gen 11, and the rules, in particular r 31.27(5) of the Uniform Civil Procedure Rules 2005 (NSW), contemplate that the expert will as soon as possible provide the report to the party by whom he has been qualified explaining the change in opinion from that expressed in the previous report.
I also expressed a view that where there has been a conference of experts that has apparently reached agreement, justice between the parties requires that the other party's qualified expert be given the opportunity to deal with the matter.
In accordance with that approach, Mr Barnes was able to obtain another report from Associate Professor Robertson last night, which I marked for identification 12 this morning. Mr Bartley objected to it being received in evidence.
Reading the report, as I remarked during argument, it is not so much a situation where Associate Professor Robertson has changed his mind as a case of him being mistaken about the true meaning of the first question he answered where he apparently accepted that the psychiatric condition he diagnosed was caused by the surgical complications.
I will not rehearse all of the debate or summarise it; it appears in the transcript. I indicated that given that the rules and the Practice Note seem to contemplate that an expert may change his or her mind, I proposed to allow the defendant to rely upon the new report.
In those circumstances, Mr Bartley reminded me, as he told me earlier, that Dr Akkerman, who had been available last week, had left Australia to go to New Zealand. It was not made clear, but I infer, given the length of his absence, he may be on holidays and he may be in a remote location because his rooms have had difficulty contacting him about this matter, as I am informed by learned Senior Counsel. So the plaintiff is not in a position to deal with this development in the defendant's camp.
I should record that Dr Akkerman had been subpoenaed to give evidence and he has not been released from his subpoena. However, he was available last week. Given the question about his whereabouts, it seems to me it would be pointless to attempt to enforce the subpoena in circumstances where he is in some location in New Zealand not easily ascertainable. In any event, given that this is a civil proceeding, I would be reluctant to use the Court's coercive powers without first getting a message to Dr Akkerman and getting some explanation from him, which may be entirely innocent.
It should be pointed out that Mr Barnes, given the issue about causation, will not waive his right to cross-examine Dr Akkerman. He can make Associate Professor Robertson available for cross-examination by Mr Bartley either by telephone or, perhaps, audio-visual link. Associate Professor Robertson is apparently in Queensland currently.
In the circumstances, Mr Bartley has been forced to apply for an adjournment so that the experts can re-confer to produce a second joint report dealing solely with this question of causation. This reflects my expressed view that given the difference which has emerged since the last conference, it is almost certainly essential that they give evidence concurrently.
Mr Barnes, in all the circumstances as I have relayed them, did not oppose the application for an adjournment.
I am well aware that adjournments cause distress and vexation to litigants of a type that cannot be adequately compensated by orders for costs and the like. In this case, Mrs Tinnock has a strong desire to see her case concluded. The matter has been in the lists of first the District Court and then this Court since about 2012, and has been twice adjourned for reasons not of her doing and for which her legal advisers have not been responsible. Likewise, the surgeon, Dr Payne, who has given evidence before me, has a strong desire to see the matter finalised. These cases involve potential reputational injury to the professionals involved. Doubtless, he would just as soon see this matter behind him, one way or the other. So both parties have that strong motivation to see the case concluded.
Unfortunately, in the circumstances that have arisen, it is not possible to do procedural justice to the parties without giving them an opportunity to have their psychiatrists give evidence before me before a determination is made, and I propose to grant the adjournment.
I wish to record that, given the able and busy counsel involved and my roster, it has not been possible to fix a hearing date in the very near future. Due to the professional commitments of counsel, and particularly, may I say with respect, Mr Bartley of Senior Counsel, an eminent leader in common law cases, the earliest date that suits the convenience of all is, regrettably, in June. The Court could have given a somewhat earlier hearing date and, doubtless, Mr Barnes, a no less eminent barrister, could have made himself available; but suiting everyone has been difficult, as commonly occurs. I regret that the earliest dates I can give to achieve that purpose are 16 and 17 June 2016.
However, I will make directions to ensure that the matter concludes on those dates. The evidence is virtually over and counsel are in a position to provide an outline of submissions in writing well in advance of that hearing date to enable the matter to be dealt with expeditiously when it resumes.
For these reasons, I make the following orders.
1. The matter is adjourned and fixed for further hearing before me on 16 and 17 June 2016.
2. I direct the solicitors for the parties to write to the psychiatrist qualified by them requiring them to re-confer to consider the following single issue: what is the cause or causes of Mrs Tinnock's psychiatric condition as diagnosed by you? If you are unable to agree on the answer to this question, please state your separate opinion and the reasons for your difference of opinion.
3. The experts are to confer on or before 18 March 2016 and to provide a supplementary joint report to the solicitors for the parties by close of business on 25 March 2016.
4. Counsel are to lodge a written outline of their argument with my chambers by close of business on 4 April 2016.
5. Fix the matter for directions before me at 9.30am on 11 April 2016 to check compliance with these orders and readiness to proceed.
6. Adjourn the matter for finalisation of other evidence tomorrow at 10am.
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Decision last updated: 25 February 2016