Bailey v Illawarra Shoalhaven Local Area Health District

HIS HONOUR: The plaintiff wishes to rely upon a report from Dr Selwyn M Smith dated 16 June 2015. Dr Smith is a psychiatrist. The report was served outside of the time ordered by the Court for the service of expert evidence such as Dr Smith’s report. The defendant opposes the use of the report in the relevant plaintiff’s case. All three proceedings are scheduled to commence on issues limited to the assessment of damages (if any) sustained by the plaintiff on 4 August 2015 with an estimate of 7 days.

The proceedings are concerned with the birth and death of the late Aaron Hoare. The plaintiff gave birth to Mr Hoare on 23 September 1984. She suffered from pre-eclampsia and her son was born suffering from cerebral palsy. He died on 5 August 2011 as the result of complications arising out of that condition.

By reason of his injuries and disabilities, Mr Hoare required 24 hour care. He was raised at home for a number of years and the plaintiff provided all of his special care needs on a gratuitous basis. He resided at home with the plaintiff until just before his seventh birthday when he became a resident of Berringa, a hostel for mentally disabled children. He resided there every second week until the hostel closed when he was 18 years of age. Mr Hoare then became a resident of a group home in Wollongong. The plaintiff continued to provide care and support to him every second day as well as every second Sunday from that time until his death.

A claim is made in the 2011 proceedings for the cost of past gratuitous domestic services and attendant care provided to the deceased during his lifetime and until his death. This claim has been particularised in the second further amended statement of particulars filed in court on 9 July 2015. It is generally divided into two categories. The first relates to services provided by the plaintiff to her son. These are particularised and described in what appears to be an orthodox fashion and include the provision of physical assistance and the performance of practical tasks required in his care. The second relates to the provision of what is described variously as “emotional support, socialisation and companionship” or as “psychological and emotional care.”

The particulars of claim also contain a claim for what is described as follows:

These latter services were provided not by the plaintiff but by her father and mother, the grandparents of the deceased.

In response to instructions from the plaintiff’s lawyers, Dr Smith described his task as follows:

Dr Smith’s opinion was stated in terms that included the following:

In my view Dr Smith’s report is inadmissible and should be rejected for the following reasons.

First, Dr Smith’s report appears to be irrelevant to the issues that remain for determination. The claim for the provision of so called emotional support by the plaintiff is clearly limited to the emotional support provided coincidentally with the provision of other physical care needs. For example, the claim is particularised on page 11 of the second further amended statement of particulars as follows:

The claim for being present as a parent for the time taken to provide other physical care services for which a claim is also made is double counting. To the extent that no such claim could be made, Dr Smith’s report deals with an irrelevant issue. I also do not understand the meaning of the expression “increased time to provide emotional support” if it is intended somehow to refer to the provision of discretely separable or identifiable non-physical attendant care needs.

Secondly, the claim for the provision of so called emotional support is primarily concerned with the provision of emotional support by the plaintiff’s parents. The nature and extent of the relationship between the plaintiff and her son in a mother-to-son context does not appear to me to have any bearing upon the provision of emotional support by his grandparents. The report of Dr Smith does not deal with grandparental support or bonds or attachments or the manifestation or maintenance of any associated psychosocial wellbeing. It is therefore irrelevant for this reason as well.

Thirdly, the claim for assistance by the plaintiff is described as being “over and above normal parenting”. Doing the best I can it does not appear to me that anything described or discussed at some length by Dr Smith in his report, and particularly in the passages quoted from it, concerns anything over or above normal parenting in the circumstances presented by this case. “Emotional support, socialisation and companionship” seem to me to be the very things that parents provide in their capacity as parents. I accept by way of contrast that the things done by the plaintiff, noted in the particulars as the physical tasks provided by her as Aaron’s mother, fall into a different category and do appear on their face to be tasks over and above normal parenting. However, these are not the things to which Dr Smith’s expert opinion and energies have been directed.

Fourthly, even though Dr Smith’s qualifications as an expert are not in doubt, the opinion that he purports to express is not an expert opinion strictly so understood. Dr Smith did not examine the plaintiff. Dr Smith did not examine the deceased. Any views expressed by him are no more and no less than a statement of what are clearly hypothetical opinions based upon the assumed proposition that the plaintiff’s presence and attention to her son was better for him, and therefore more beneficial to his overall progress and comfort, than if she had remained absent. While that view may be taken almost by definition to be accurate, if not axiomatic, Dr Smith’s expression of it is not patently or obviously tied to the expression of an expert opinion that is explained in his report. Examination of the deceased may, for all that is or was known by Dr Smith, have produced different conclusions. His views are not capable of empirical verification so far as they concern the deceased in this case. They do not appear to be traceable to him as an accepted repository of specialised knowledge: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 75 at [85].

Finally, the report has been provided late. The relevant proceedings have been on foot in this Court since 2011. The report should have been served well before now and should have been provided in accordance with directions made by the Court. It is also difficult to know what any expert could say about Dr Smith’s views to the extent that they are based on general expressions of opinion and largely unverifiable hypothetical assumptions. The defendant ought not to be required at this late stage to attempt to qualify an expert to meet Dr Smith’s report.

I consider that the plaintiff should be precluded from relying on the report of Dr Selwyn Smith.