Sandra Battersby v Allan; Darrel Battersby v Allan

Before the court is a notice of motion filed by the defendant in proceedings 2015/283601 brought by Sandra Battersby, seeking orders that:

In light of the order sought in (2), the hearing of the motion has proceeded on the basis that it was filed both in the proceedings brought by Mrs Battersby as well as in the proceedings brought by her husband, Darrel Battersby, being proceedings 2015/00283627.

No substantive issue is raised in respect of the orders sought in (1) and (2) and in my view, they are appropriate. Beyond that, the orders sought in the motion are opposed by the plaintiffs.

A court book containing the entirety of the evidentiary material was admitted without objection (Exh. C). It included material which had been the subject of separate tenders, including:

Exhibit C included the following affidavits which were read by the defendant without objection:

Exhibit C also included the following affidavits which were read by the plaintiffs without objection:

A further affidavit of Mr Abboud dated 1 December 2017 was filed after judgment was reserved, with the consent of the defendants. Neither Ms Beyers nor Mr Abboud were cross-examined on the contents of their respective affidavits.

In addition, the defendant also tendered a copy of a subpoena issued to Dr Milder (Exh. D) seeking production of:

On 30 October 2013, the plaintiff Sandra Battersby underwent a CT scan which had been arranged for her by an Ophthalmologist for the diagnostic evaluation of what were thought to be optic nerve and retinal abnormalities. The CT scan showed evidence of a left sided supratentorial enhancing calcified mass which was thought to be meningioma. A subsequent MRI scan of the brain confirmed the presence of an inferior left sided extra-axial mass within the anterior of the middle cranial fossae, extending to the left parasella area and left cavernous sinus.

The defendant is a specialist Neurosurgeon. Mrs Battersby consulted him on 8 December 2013, at which time he advised her to undergo surgery. On 10 December 2013 the defendant performed a left fronto-temporal craniectomy on Mrs Battersby. Mrs Battersby alleges that during the course of that surgery, damage was caused to her left middle cerebral artery which was subsequently confirmed by CT scan. CT scans of the brain also demonstrated ischemia within the left hemisphere in the area of the supply of Mrs Battersby’s left middle cerebral artery.

On 11 December 2013, the defendant performed a further craniectomy on Mrs Battersby, in the form of an extracranial-intracranial bypass. That was followed by the removal of a clot lodged within Mrs Battersby’s left middle cerebral artery. CT scans of her brain which were performed on the same day demonstrated an infarction on the left hand side within the frontal and temporal lobes, the former being associated with a haemorrhagic transformation.

Mrs Battersby alleges that as a consequence of the defendant’s negligence, she has developed a right hemiplegia which has given rise to significant disabilities. The allegation of negligence is denied by the defendant.

Mrs Battersby’s husband, Darrel Battersby, has commenced separate proceedings against the defendant. He alleges that he has suffered nervous shock as a result of witnessing the effect of the allegedly negligent surgery performed by the defendant on his wife. Liability is also in issue in those proceedings.

Contained in Exh. C is a chronology prepared by counsel for the defendant, the accuracy of which was not disputed. It contains the following entries:

Paragraph 3 of the motion seeks an order excluding the report of Dr Milder of 19 February 2015. Paragraph 5 seeks further order that Dr Milder be excluded from participation in any conclave of experts which might be ordered for the purposes of the hearing of the proceedings.

Dr Milder is a consultant Neurologist. A letter of instructions was forwarded to him on 19 February 2015 by the plaintiffs’ solicitor in the following terms (inter alia):

In response to those instructions, Dr Milder provided a report of 19 February 2015 in which, having set out the history of the surgery which is the subject of the present proceedings, he stated the following under the heading “Opinion”:

That report contains no formal statement of Dr Milder’s qualifications, no acknowledgment of the Code of Conduct which applies to expert witnesses, and no acknowledgment of his willingness to be bound by the terms of that Code. However, the defendant raises no specific issue in respect of any of these matters. The defendant’s fundamental objection to the report is that Dr Milder lacks the necessary expertise to express at least some of the opinions which are contained within it.

Dr Webster is a Neurosurgeon who provided an undated report to the plaintiffs’ solicitors which was served on the defendant on 12 July 2017. Unlike the position in respect of Dr Milder, the defendant does not challenge Dr Webster’s qualifications or expertise. The orders sought by the defendant in respect of Dr Webster’s report, and in respect of any participation by Dr Webster in an expert conclave, are based upon the fact that the report was not served in accordance with orders made by the District Court prior to the matters being transferred to this Court.

In that regard, the chronology establishes the following:

It is noteworthy that the report of Dr Webster was served a little over two months after the defendant had served, in accordance with the timetable set by the Court, a report of Professor Laidlaw, a Neurosurgeon. It is an inescapable inference that up until that time, the plaintiffs’ solicitor had made a forensic decision to conduct the respective cases on liability by relying solely upon the report of Dr Milder, and that it was only when served with Professor Laidlaw’s report that he renewed his earlier (unsuccessful) attempts to qualify a Neurosurgeon.

It should also be noted that Dr Webster’s report was served more than six months outside the last extension of the timetable which had been granted by the District Court. Moreover, the service of the report was not accompanied by the affidavit which was ordered by the Court to be provided in the event that there was any further application regarding service of evidence, much less accompanied by any notice of motion seeking orders extending the time for service.

The defendant’s motion gives rise to the following issues:

Section 79 of the Act is in the following terms:

The evidence establishes that Dr Milder is a Consultant Neurologist. He began specialist medical training in Neurology in 1975. He became a Fellow of the Royal Australasian College of Physicians in 1982. That fellowship has continued until the present time. He held an appointment in a Department of Neurology examining neuropathological material, including brains at post-mortem, for more than 15 years from 1981.

On 14 November 2017, in response to the issues raised on the present motion, the plaintiffs’ solicitor wrote to Dr Milder requesting a supplementary report “setting out (his) specialised knowledge, based on training, study or experience, to express the opinions (he has) given in (his) previous report”. On 16 November 2017 Dr Milder responded as follows:

On 16 November, the plaintiffs’ solicitor wrote to Dr Milder again in (inter alia) the following terms:

On 16 November 2017 Dr Milder responded in the following terms:

As I have noted, the evidence before me includes the Curriculum, which sets out a number of training pathways which extend to training in Neurology and continuing professional development. The Curriculum makes it clear that the training and skill of a Neurologist includes training in Neuroanatomy and Neuropathology, including the study of brain tumours and associated surgery. At p. 3 it records the following:

The Curriculum also sets out specific learning objectives by reference to what are described as “Themes”. Theme 4.5 (at p. 37) is entitled “Neurosurgery and Vascular Surgery” and states, as its learning objective:

It then states the following:

The evidence does not enable me to conclude that Dr Milder followed the precise course of study set out in the Curriculum in its current form. However, I am satisfied on the whole of the evidence that he must necessarily have followed a similar course of study in order to be conferred with the Fellowship to which he referred in his correspondence.

The defendant’s challenge to the admissibility of Dr Milder’s report was based upon a challenge to his expertise. Shortly put, it was the submission of counsel for the defendant that as a Neurologist, Dr Milder lacked the necessary expertise to express an opinion in relation to matters of Neurosurgery. It was submitted that the opinion he had expressed was the province of a Neurosurgeon, not a Neurologist.

It was submitted that Dr Milder’s opinion regarding the manner in which the surgery upon Mrs Battersby ought to have been performed, as well as the opinion that he expressed concerning post-operative management, fell outside of his field of training, study, and experience and was, by operation of s. 79 of the Act, inadmissible. Counsel for the defendant submitted that such a fundamental shortcoming was not overcome by the most recent reports from Dr Milder which provided further information regarding his qualifications and experience.

Counsel accepted that as a Neurologist, Dr Milder could express an opinion about matters going to damages and cited, as an example of what might fall within his field of expertise, evidence as to injuries sustained as a consequence of surgery. However, counsel submitted that Dr Milder was in no position to comment upon, and/or express an opinion about, the performance of Neurosurgery, for the simple reason that he was not a Neurosurgeon.

Counsel for the defendant also relied upon Dr Milder’s response, or perhaps more specifically what was said to be his lack of response, to the subpoena which had been served upon him. It was submitted that Dr Milder had been given the opportunity to demonstrate to the Court, by properly responding to the subpoena, that he had the requisite training, study and experience to express the opinions that he had expressed, but that he had failed to do so. In particular, it was submitted that there was nothing produced pursuant to the subpoena which demonstrated that Dr Milder had ever undertaken any advanced Neurological training.

Finally, as part of the objection taken to the report of Dr Milder, counsel for the defendant drew my attention to the letter of instructions which had been provided to him by the plaintiffs’ solicitor. It was submitted that it was inherent in the terms of that correspondence that Dr Milder had been asked to express an opinion about the method and manner of Neurosurgery which he was not, for the reasons previously submitted, properly qualified to express.

Counsel for the plaintiffs submitted that the evidence established that Dr Milder had the requisite specialised knowledge to allow him to express the opinions contained in his report. It was submitted that this was evident from his more recent report of 16 November 2017, as well as the contents of the Curriculum. It was submitted, in particular, that it was evident from the Curriculum that the training of a qualified consultant Neurologist included an emphasis on Neuroanatomy and Neuropathy, as well as the study of (inter alia) brain tumours.

Counsel for the plaintiffs submitted that the defendant had advanced no rational basis upon which it was open to conclude that only a Neurosurgeon is qualified to comment upon another Neurosurgeon’s skill and that in all of these circumstances, the opinion of Dr Milder was admissible.

Section 79 of the Act imposes two preconditions to the admissibility of expert opinion evidence, namely:

Whether formal qualifications will be sufficient to demonstrate the necessary expertise in relation to particular applications of such qualifications is necessarily a matter which must be determined according to the facts of the particular case. That issue has been considered in the context of expert evidence from medical practitioners.

For example, in R v Anderson (2000) 1 VR 1; [2000] VSCA 16 the Court considered the issue of whether an emergency medicine specialist was appropriately qualified to express an opinion on the question of whether knife wounds were self-inflicted. In concluding that the evidence was not admissible, Winneke P (with whom Phillips and Chernov JJA agreed) said (at [58]):

A different conclusion was reached in R v Farquharson (2009) 26 VR 410; [2009] VSCA 307 where the Court considered whether an opinion expressed by a specialist thoracic physician was admissible to prove that a person was not likely to have suffered a cough syncope before driving a car off a road and into a dam. The Court (Warren CJ, Nettle JA (as his Honour then was) and Redlich JA) said at [79] (citations omitted):

Neither party in the present case adduced any specific evidence as to the extent of the differences in the specialties of a Neurologist on the one hand, and a Neurosurgeon on the other. However, the definitions of those terms are informative.

The Macquarie Dictionary (7th Edition) contains the following definitions:

Blakiston’s Gould Medical Dictionary (2nd Edition) contains the following definitions:

It will be apparent from these definitions that although the two specialties are different, they have a number of common features. Both are centred on diseases of the nervous system and the brain. Both necessarily require knowledge of the anatomy and physiology of the brain. Both stem from common areas of training, study and experience in diseases of the nervous system and the brain. The principal difference between the two is that a Neurologist is primarily concerned with the treatment and management of such diseases, whilst a Neurosurgeon is primarily concerned with the conduct of surgical procedures in relation to them. However as I have pointed out, fundamental to both specialties is expertise in the anatomy, physiology and pathology of the nervous system, including the brain.

The unchallenged evidence before me is that a Neurologist is required to have a detailed understanding of (inter alia) the anatomy of the brain, and the deficits resulting from damage to the brain. The evidence also establishes that a Fellow in Neuropathology (Dr Milder having held such a Fellowship since 1981) is required to have expertise in the macroscopic and microscopic examination of the brain. The opinion expressed by Dr Milder in the present case is clearly based upon his knowledge of, and his training, study and experience in, those matters. It is also evident that Dr Milder’s opinions are based, at least in part, upon matters of physiology, an area in which he has considerable training, study and experience.

I am mindful of the observations of the Court in Farquharson (at [79]) regarding the importance of considering the precise character of the question upon which the expert evidence is sought to be given. In the present case, the precise character of the question is centred upon a surgical procedure to an area of the anatomy in which he has considerable training, study and experience. It may be the case that ultimately, the weight to be attached to Dr his opinion is less than that to be attributed to the opinion of a Neurosurgeon. However, questions of admissibility must not be confused with questions of weight: Farquharson at [81].

Further, I am not persuaded that Dr Milder’s response to the subpoena served on him by the defendant has any real bearing on the issue of the admissibility of his opinion. His qualifications and experience are set out in the evidence to which I have referred, much of which Dr Milder provided to the plaintiffs’ solicitors. That evidence, and its veracity, is unaffected by his response to the subpoena.

For all of these reasons, I am satisfied that the opinion of Dr Milder is one of specialised knowledge based upon his training, study and experience. Accordingly, the provisions of s. 79 of the Act are satisfied, and the opinion is admissible.

These questions may conveniently be dealt with together.

Rule 31.28 of the Rules is in the following terms:

Section 14 of the Civil Procedure Act 2005 (NSW) (“the CPA”) is in the following terms:

Counsel for the defendant submitted that r. 31.28 clearly governed the admissibility of Dr Webster’s report, along with other provisions of the CPA. It was submitted, in particular, that the report of Dr Webster was an “expert report” within the meaning of the rule and that the effect of r. 31.28(3) was to render inadmissible an expert report unless it had been served in accordance with the rule, or unless leave were granted on one of the bases in r. 31.28(4).

Counsel for the plaintiffs submitted that the defendant had misconstrued r. 31.28. It was submitted that, in effect, the plaintiff was asking the Court to extend, pursuant to r. 2.1 of the Rules, the time for service of Dr Webster’s report. It was submitted that in circumstances where the plaintiff had made such an application, r. 31.28 had no application.

In my view, there is no doubt whatsoever that r. 31.28 governs the admissibility of Dr Webster’s report. The submission advanced on behalf of the plaintiffs is an inherently circular one. If it were correct, a party would only have to make an application under r. 2.1 to entirely circumvent the effect of r. 31.28. Such a result would be plainly absurd, and not one that could possibly have been intended.

Whether the operation of r. 31.28 should be dispensed with is a separate question, and one which I addressed in Capar v SPG Investments Pty Limited trading as Lidcombe Power Centre (No. 1) [2017] NSWSC 1371 at [17]:

The plaintiffs have adduced no evidence which would justify the exercise of the discretion contained in s. 14 of the CPA.

Again, these questions can be conveniently dealt with together.

In addition to r. 31.28, there are a number of provisions of the CPA which impact upon these questions. Firstly, s. 56 of the CPA is in the following terms:

Section 57 of the CPA sets out the objects of case management of proceedings in the following terms:

Sections 58 of the CPA is in the following terms:

Finally s. 61 of the CPA is in the following terms:

Counsel for the defendant submitted that there were no exceptional circumstances within the meaning of r. 31.28 which would warrant the admission of Dr Webster’s report. It was further submitted that for the purposes of determining whether exceptional circumstances were made out, there was necessarily some interaction between the provisions of r. 31.28 and the provisions of the CPA outlined above. It was submitted that it was readily apparent that r. 31.28 formed part of the relevant case management regime, and that the dictates of justice in the CPA operated to limit the circumstances in which the court could exercise its power to grant the leave required under r. 31.28 in order for the report of the Dr Webster to be admissible.

Counsel placed considerable emphasis upon the failures of the plaintiffs’ solicitor to comply with orders of the District Court requiring the service of expert evidence. It was submitted, in particular, that nothing contained in the affidavit material relied upon by the plaintiffs advanced any explanation for the failure to serve a report from a Neurosurgeon in accordance with the orders which had been made. It was submitted that in light of the history of the proceedings, a limit had been reached which justified a finding that no exceptional circumstances had been made out.

Counsel for the plaintiffs submitted that the dictates of justice warranted the admission of Dr Webster’s report. It was submitted, in particular, that the affidavit evidence of the plaintiffs’ solicitor established that for a long period of time he had made extensive efforts to obtain a report of a Neurosurgeon without success.

Counsel further submitted that the final hearing of the matter was not due to take place until June of 2018. He submitted that in these circumstances, and bearing in mind the time at which Dr Webster’s report had been served, there was no prejudice to the defendant in the event that the report was admitted.

Finally, counsel emphasised the consequences which would flow to the plaintiffs if the report of Dr Webster were excluded and submitted that a combination of all of these factors constituted exceptional circumstances.

In Yacoub v Pilkington Limited [2007] NSWCA 290, Campbell JA (with whom Tobias JA and Handley AJA agreed) specifically considered the meaning of the term “exceptional circumstances” (at [66]):

His Honour then said:

It is clear from his Honour’s observations at [67] that the provisions of r. 31.28, and those of the CPA which I have outlined above, together constitute a regime of case management which is directed to the just, quick and cheap resolution of the real issues in any proceedings.

In the present case, the evidence establishes that a number of attempts were made by the plaintiffs’ solicitor, without success, to retain a Neurosurgeon for the purposes of providing an expert report. The evidence also establishes that one of the principal reasons for those difficulties was an expressed reluctance on the part of those experts who were approached to comment upon surgery which had been conducted by a professional colleague. However as I have previously noted, the only inference which can be drawn is that having encountered those difficulties, the plaintiffs’ solicitor made a conscious forensic decision to conduct the cases for the plaintiffs based solely upon the report of Dr Milder. He then reconsidered, and reversed, that decision when served with the report of Professor Laidlaw, renewing his attempts to qualify a Neurosurgeon, and ultimately serving the report of Dr Webster.

The preparation of the plaintiffs’ cases, at least from the point of view of obtaining expert evidence, appears to have been conducted in what might be described as a reactive way. A prudent solicitor, in preparing a case for a plaintiff, should address questions of evidence by reference to those matters which are in issue on the pleadings, and thus those matters which the plaintiff will be required to prove in order to establish his or her case. Cases brought by a plaintiff are not, or at least should not be, prepared in a reactive way, in response to evidence served by a defendant. It is, to some extent, the latter approach which has led, at least in part, to the late service of the report of Dr Webster in the present case.

Moreover, during the period which intervened between the service of the report of Dr Milder and the service of the report of Dr Webster, the proceedings came before the District Court on numerous occasions for case management purposes. On more than one of those occasions, the time for service of the plaintiff’s expert medical evidence was extended. Importantly, on 19 January 2017 it was ordered that any further application in respect of the service of expert evidence by the plaintiffs be supported by an affidavit.

The subsequent service of the report of Dr Webster ignored the entirety of those orders and was affected in a way which was completely at odds with the management of the proceedings up until that time. The letter serving the report of Dr Webster was not accompanied by any affidavit in accordance with the orders which had been made, much less by a notice of motion seeking an extension of time in which it could be served. The plaintiffs’ solicitor appears to have proceeded on the assumption that by simply serving the report, the plaintiffs would be entitled to rely upon it. Any further comment on the wholly unsatisfactory nature of that approach would be superfluous. There is considerable merit in the submissions advanced on behalf of the defendant in this respects.

That said, it remains the case that the hearing of the proceedings will not be delayed as a consequence of the service of Dr Webster’s report. Moreover, and although the report was served outside of orders made by the Court, counsel for the defendant candidly, and properly, conceded that there would be no demonstrable prejudice to the defendant if the report were admitted. Perhaps even more importantly, if the report were excluded it would leave the plaintiffs in a position where they would be precluded from relying upon important expert evidence in support of their respective cases. That, in addition to the matters to which I have already referred, is sufficient in my view, to constitute exceptional circumstances.

In the course of submissions it was suggested by counsel for the defendant, albeit feintly, that it was relevant to take into account that in the event that the report of Dr Webster were excluded, the plaintiffs may have some cause of action against their solicitor. If that be a possibility, it is one which is of little weight in the discretionary exercise: Repco Corp Limited v Scardamaglia [1996] 1 VR 7 at 15 per Smith J; Simms v Western Sydney Area Health Service [2003] NSWSC 445 at [11]-[12] per Burchett AJ.

It follows that in my view, exceptional circumstances are established for the purposes of r. 31.28(4)(a) and leave should be granted to admit the report of Dr Webster.

I make the following orders: