Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service

HIS HONOUR: Two matters arise for consideration in this long-running litigation. The first concerns the defendant’s application to amend its defence. The second concerns the plaintiff’s desire to serve expert medical evidence from a geneticist.

The plaintiff has amended his statement of claim more than once. In response to his further amended statement of claim the defendant pleaded at paragraph 80 in the following terms:

The proposed amendment is as follows:

The proposed amended defence had been circulated to the plaintiff’s solicitors by letter dated 7 May 2018. The defendant sought a response in a subsequent letter dated 18 May 2018. On 23 May 2018, the plaintiff’s solicitor responded as follows:

The defendant’s solicitor responded in these terms on 24 May 2018:

The plaintiff’s solicitor replied by letter dated 28 May 2018 as follows:

The defendant’s solicitor responded on 29 May 2018 as follows:

Finally, for present purposes, the plaintiff’s solicitor replied on 7 June 2018 as follows:

In support of its application, Mr Cheney SC made the following submission:

I take the plaintiff’s position to be as described in the letter dated 7 June 2018.

I inquired of counsel for the plaintiff whether she could tell me what portions of the proposed amendments raised any new issue. The response to my inquiry was as follows:

It seems to me that, far from creating any disadvantage for the plaintiff, the proposed amendments in fact clarify the defendant’s position. The defendant’s concession that the amendments are based upon the evidence already served also means that the plaintiff is protected from any attempt by the defendant at a later stage to augment its s 5O contentions by reference to material that the plaintiff does not already have.

In the circumstances, the proposed amendments ought to have been agreed to long before this. Indeed, some of the references in the plaintiff’s solicitor’s letter dated 7 June 2018, on one view, confine the defendant’s case and appears to support the need for the amendment rather than the reverse. The plaintiff’s experts have already expressed opinions about whether what the defendant did accorded with a proper standard of care and management. There is no magical quality about the words used in s 5O that remove the need for an inquiry about the propriety or otherwise of what the defendant is alleged to have done or failed to do. A case such as the present will proceed upon evidence and opinions in much the same way as it would have before the Civil Liability Act 2002. The defendant’s case will be assessed by reference to the evidence in its current form. The defendant’s proposal does not give rise to the need for the plaintiff to do anything more in an evidentiary context than has already been done.

The second issue arises in the following way. On an earlier occasion, Garling J made an order that the plaintiff respond to the report of Professor Delatycki, a geneticist retained by the defendant. The plaintiff has so far served a report and an MRI but now wishes to obtain the opinion of a geneticist. Counsel for the plaintiff has indicated that that has been difficult to arrange and relies upon the affidavit of Tonya Teresa Longmore sworn 7 June 2018 in which she describes efforts to locate such an expert.

Senior counsel for the defendant has informed me that he wishes to cross-examine Ms Longmore about what efforts have been made since 30 October 2017 to answer Mr Dylaticki’s report upon the basis that he perceives that the plaintiff may well have been inappropriately tardy in any attempts to do so. The defendant concedes that there is no presently obvious prejudice that would attend the service within eight weeks by the plaintiff of a geneticist’s report, apart from the somewhat remote and speculative possibility that the defendant might require genetic testing of the plaintiff’s siblings.

Although the existence or anticipation of prejudice is not the only matter of relevance, and may not even be of any relevance in some cases, it seems to me that the plaintiff should have an opportunity, if he now considers it to be appropriate, to respond to a report from a specialist that the defendant considers was sufficiently important to serve in its own case. The hearing is not listed until November 2018. If the genetic issue is to be assessed as part of this case in a fair way, it would be churlish at this remove from the hearing not to allow the plaintiff, within a specified time, to obtain the evidence in question. I have no enthusiasm for the suggestion that Ms Longmore should be required for cross-examination, having regard to the overriding purpose and s 56 of the Civil Procedure Act 2005, when the defendant accepts that it is not prejudiced and in circumstances where the material will be available by no later than mid-August 2018 in any event.

In the circumstances, I will make the following orders: