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File Number(s): 2018/302633

Publication restriction: No

JUDGMENT

1. These proceedings arise from a collision between a speedboat (controlled by the defendant) and a jet ski (on which the plaintiff was a passenger) on the Nerong River on 7 October 2016.

2. The jet ski was being controlled by a friend of the plaintiff’s grandmother, Mrs Danielle Taylor. She was killed in the accident. The plaintiff was injured. The proceedings are to obtain damages for the plaintiff.

3. The plaintiff was eight years of age when the accident occurred. He was already living with his grandmother who is his tutor in the proceedings.

4. The defendant has admitted breach of duty of care, but not the quantum of damages.

5. One of the injuries alleged by the plaintiff is a traumatic brain injury. The defendant challenges the extent of this injury.

6. A single expert report was obtained from a Dr Louise Parry, a neuropsychologist, pursuant to Subdiv 4 of Div 2 of Pt 31 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR).

7. Rule 31.44 of the UCPR states:

Except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties’ single expert has been engaged under this Division in relation to that issue.

8. The notice of motion before me, filed on 6 March 2026, is an application by the plaintiff to adduce evidence from another expert, namely Dr Jamie Berry.

9. The reason for seeking leave is because it is asserted that there are a number of deficiencies in Dr Parry’s report. In particular it is submitted that Dr Parry:

“(a) failed to assess and consider all relevant and appropriate information with respect to the nature and extent of behavioural and cognitive disabilities and the timing of their onset.

(b) declined to accord due weight to the opinion of other experts, in particular, Dr Yazbek, radiologist.

(c) declined to make any attempt to parse impairments and disabilities which are related to the accident from those which are due to pre-existing conditions/events or a combination of causes.”

10. The plaintiff relies on the affidavit of his solicitor Ms Joelle Anjoul dated 6 March 2026, and the affidavit of his tutor, Mrs Anita Walmsley, dated 16 February 2026. There is also another affidavit from a solicitor acting for the plaintiff, Ms Suzan Yalda, dated 19 June 2026.

11. The defendant read an affidavit of Ms Nancy Barakat, one of the defendants’ solicitors, dated 17 March 2026.

Principles

12. I do not think there is much difference between the parties’ submissions concerning the relevant discretion whether or not to grant leave. Both parties referred to decisions of Brereton J.

13. In Tomko v Tomko [2007] NSWSC 1486 his Honour said, at [8] and [9]:

“It has been said that proper exercise of the discretion to grant leave only requires satisfaction that there is an appropriate basis to permit a party to adduce additional evidence and that relevant considerations include the nature and complexity of the issues, the existence of an objective basis to question the conclusion arrived at by the joint expert, the existence of significant competing expert opinion, and the actual or apprehended bias of the joint expert. [Daniels v Walke**r [2000] 1 WLR 1382; Cosgrove v Pattison [2001] CP Rep 68; Ritchie’s Uniform Civil Procedure (NSW), [31.44.5]].

In my view, the court should be relatively ready to grant leave to adduce evidence from a separate expert, lest trial by single expert otherwise become substituted for trial by judge. Where some arguable basis is shown for challenging the report of a single expert, the court should be disposed to grant such leave.”

14. In Wu v Statewide Developments Pty Ltd [2009] NSWSC 587 his Honour, after considering the relevant principles, including from English cases, provided, at [17], these guidelines:

“• An order for a single expert is a first step, not necessarily the last word on the topic. While the magnitude of the case will influence the court’s willingness to permit further reports, having regard to considerations of proportionality, the process was not intended to substitute trial by expert for trial by court.

• It will be a significant factor in favour of permitting further expert evidence if the existence of a competing respective expert opinion can be shown.

• It will be a significant factor in favour of permitting further expert evidence if otherwise the party affected would have a legitimate sense of grievance that it had not been permitted to advance its case at trial.”

15. Hallen J, in Estate of Genevieve Bryan [2021] NSWSC 567 agreed with the above guidelines but added, at [62]-[63]:

“I respectfully agree with the guidelines suggested by Brereton J as being relevant to the determination of the question whether leave should be granted. However, I am also of the view that the main purposes of Division 2 of Part 31, which relates to expert evidence, as detailed in UCPR r 31.17, provide additional matters for consideration by the Court on that question. The Court should be mindful of those purposes.

With the utmost respect, I part company with Brereton J in respect of his view that the Court ‘… should be relatively ready to grant leave to adduce evidence from a separate expert …’. Whether to grant leave will be fact sensitive. It may be distracting to suggest that the Court should be more ready, or for that matter, less ready, to grant leave.”

16. Hallen J had already said, at [51]:

“The power to grant leave makes clear that the appointment of a joint expert does not prevent a party being allowed to obtain a report from another expert. There is nothing in UCPR r 31.44 that reveals what matters the Court should consider in determining an application for leave to a party to adduce evidence of any other expert on any issue arising in proceedings. Clearly, a degree of flexibility is required and the Court’s discretion in relation to the grant of leave is unfettered. The application of broad principles to very specific factual circumstances should not detract from the breadth of the Court's discretion.”

17. Clearly, I have a discretion, and it is to be exercised having regard to the specific facts of the case, and to the obtaining of a just result which would not leave the plaintiff with “a legitimate sense of grievance that it had not been permitted to advance its case at trial.”

Discussion

18. Mrs Walmsley, the plaintiff’s tutor, has an obvious grievance with Dr Parry’s reports.

19. In her affidavit Mrs Walmsley takes issue with comments made by Dr Parry about the reliability of information she provided about her grandson’s “behaviour and functioning”. She adds that:

“Dr Parry also appears to infer that I may have instructed Luke to underperform during neuropsychological testing.”

20. Mrs Walmsley says this about a telephone interview she had with Dr Parry on 6 June 2025:

“During the interview, I answered the questions put to me about Luke honestly and to the best of my ability. During the interview Dr Parry did not ask me whether I had instructed or encouraged or suggested to Luke that he should underperform, exaggerate symptoms or misrepresent his abilities during the neuropsychological assessment with Dr Parry or at any time. She did not ask me whether I had exaggerated or misled others about the extent of Luke’s behavioural problems since the boating accident. She did not provide me with any opportunity to respond to the comments she made about matters going to the history of Luke’s behavioural and cognitive problems set out in her written reports.”

21. Mrs Walmsley, having read Dr Parry’s supplementary report, stated she understands that Dr Parry:

“… has maintained her previous opinions regarding the veracity of my reports often concluding that I am exaggerating the extent of Luke’s impairment and deficits.”

22. Mrs Walmsley describes the disabilities, and difficulties, that she has observed in the plaintiff’s daily life. Mrs Walmsley quotes from Dr Parry’s second report:

“In this sense I would argue that it is not possible for this to have been a severe traumatic brain injury given the solid neuropsychological performances that were exhibited across core cognitive domains. Moreover, I would note that in the context of a moderate traumatic brain injury, with premorbid ADHD and ODD, that Luke’s neuropsychological outcome has been excellent, and that there is now no discernible, residual neurocognitive deficit that would be attributable to a traumatic brain injury.”

23. Mrs Walmsley then states:

“I strongly disagree that there is no neurocognitive deficit attributable to Luke’s traumatic brain injury.”

24. Based on the Statement of Particulars, the case has the potential to yield a significant quantum. A good deal of the assessment will no doubt depend on the extent to which the court finds the plaintiff suffered a brain injury and does or does not continue to experience the effects of that injury. Practically every head of damages will be affected by this assessment.

25. Although Dr Parry recognises that the plaintiff suffered a brain injury, she is plainly of the view that the plaintiff’s current condition is the same as it would have been but for the accident:

“It is likely that there were psychological sequalae early in the recovery phase due to the trauma associated with the subject accident. Psychiatry and psychology reports do not, however, indicate ongoing effects that would be able to be differentiated from the complex premorbid background and specific to the subject accident.”

26. The defendant emphasised that Dr Parry’s opinion was based on the neuropsychological testing that she administered. The plaintiff had evidently done his best so that Dr Parry was able to rely on the results of the testing. In essence, the testing produced an objective result not dependent upon whether or not Dr Parry believed Mrs Walmsley.

27. I think the point is well made but has this drawback. If an opinion is formed only on the testing why is it necessary to have a history at all? All medical examiners, of whatever specialty, are concerned to have an accurate history of the patient’s background both before and after a subject accident.

28. Dr Parry goes further than simply doubting Mrs Walmsley. She queries her “veracity”. After speaking to Mrs Walmsley Dr Parry said:

“… and I maintain that Mrs Walmsley’s reports cannot be regarded as reliable and accurate sources of evidence.”

29. In the conclusion of her second report Dr Parry says:

“It would be challenging, and likely not feasible, to reliably differentiate any ongoing behavioural and psychological sequelae attributable to the pre-existing neurodevelopmental and psychological history from those potentially arising from a moderate, at most, traumatic brain injury, particularly given the ongoing psychosocial challenges and suboptimal family environment that has continued post-injury. The limited reliability of collateral family reports further constrains the ability to make these types of distinctions.”

30. Although couched in medical jargon, Dr Parry is clearly attributing, at least in part, the inability to rate the extent of the brain injury to the family reports, including and perhaps only, from Mrs Walmsley.

31. Another point made by the defendant was that if Dr Berry came to a different conclusion than Dr Parry, any further neuropsychological testing would have to wait another two years. The point is correct, but rather than waiting for further testing it would be for a court to decide which was the better opinion. Also, Dr Parry will be entitled to comment on the new testing.

32. Mrs Walmsley, as tutor, will be called upon to give instructions in respect of any attempt to settle the case and also to give instructions, if there is no settlement, about elements in the running of the case. If the case is dependent on Dr Parry’s report, I have no doubt that Mrs Walmsley will have a significant sense of grievance, which will no doubt affect her capacity to give instructions for the benefit of the plaintiff.

33. I do note that the plaintiff will soon be turning 18 and will certainly have achieved this age by the time the matter comes on for hearing. Therefore, if he does not have a tutor, he will be giving instructions and not Mrs Walmsley.

34. I was informed that Mrs Walmsley’s opinion is that her grandson could not properly give instructions. This opinion alone will not dictate the appointment of a tutor after the plaintiff turns 18. I was told that the proposed report from Dr Berry could be utilised to examine this issue.

35. Whether or not Mrs Walmsley continues as a tutor, she is likely to give evidence about the plaintiff’s past and ongoing behaviour and functioning. It may well be that she will be the principal source of this evidence. She has been his carer since before the accident. A conflict between her evidence and that of Dr Parry will indeed be unfortunate and capable of influencing the proceedings, including settlement.

36. The defendant made the valid point that if the matter did settle and a tutor was still in place, the court would need to give its approval for the settlement. The difficulty is however, whether or not a settlement occurs at all may be influenced by the tutor’s perceptions.

37. Having made the above points about the grievances of the tutor, and factoring in that the plaintiff may not have a tutor at all after he turns 18, I would be reluctant, without more, to give the appropriate leave. It might well be said that the relevant grievances should be those of the plaintiff not of his tutor.

38. There are other factors to be considered. Dr Parry’s view is that effectively there is no continuing disability arising from the plaintiff’s head injury. There is however, a real issue about the extent of the brain injury, and whether it is mild, moderate, or severe. The answer to this question will have a significant impact on the plaintiff’s future life and consequently on the extent of damages that he might receive.

39. Another real issue is whether or not the plaintiff suffered from ADHD before the accident. Dr Parry assumed that he had. The report will be affected by this assumption being disproved. There is some evidence that the plaintiff did not have pre-existing ADHD. This view is expressed by Dr Mandalis in her report of 12 September 2019. Dr Mandalis was of the view that the plaintiff suffered a brain injury “of at least moderate severity.” Obviously, an ultimate finding that the plaintiff did not have ADHD before the accident will significantly impact the attributability of his current problems to the accident.

40. As pointed out on behalf of the plaintiff, the bar to granting leave is low. I think the combination of the above factors is enough to give the plaintiff leave. I note that Ms Yalda says her firm will pay for Dr Berry’s report. I think that is appropriate, especially if the report is to be used in aid of whether or not the plaintiff needs a tutor after turning 18. I will include this payment as a condition of the leave.

41. As to the costs of the notice of motion my initial thought was that the costs should be costs in the cause. This is the order sought in the motion. However, as liability is admitted, this is the same as an order that the defendant is to pay the costs. I will order that each party pay its own costs of the notice of motion.

Orders

42. I make the following orders:

43. The plaintiff is granted leave to obtain and rely on a report and assessment from neuropsychologist, Dr Jamie Berry.

44. It is a condition of the leave granted that the plaintiff (through his solicitors) pays for the assessment and report of Dr Berry.

45. Each party is to pay its own costs of the notice of motion.

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