Hogan v Jaffe [2022] NSWSC 1662

Hogan v Jaffe [2022] NSWSC 1662

The plaintiff was permitted to serve a second endocrinology report because, although the fact that Professor Carter was retired was not alone sufficient, the complexity of the causation issues, the subspecialty matters raised by Dr D'Emden, the late service of the second defendant's endocrinology evidence, and the practical circumstance that two defence endocrinologists may be before the Court while the plaintiff had one supported leave. Any prejudice to the second defendant, including possible costs thrown away if the case were re-pleaded, could be managed by reserving costs and leaving admissibility and reliance on two experts to the list judge or trial judge.

Jurisdiction
Australia
Judgment Date
28 November 2022
Procedural Posture
Medical Negligence Proceedings; Notice of Motion for Leave to Serve Expert Evidence / Interlocutory Procedural Ruling
Outcome
Notice of motion granted in part; plaintiff permitted to serve an expert report from a second endocrinologist, with costs in the cause and costs thrown away reserved.
Legal Topics
['leave to Serve a Second Expert Report' 'expert Endocrinology Evidence' 'professional Negligence List' 'civil Liability Act S 5 O' 'prejudice and Costs Thrown Away']
['civil Procedure' 'medical Negligence' 'professional Negligence' 'evidence'] ['leave to Serve a Second Expert Report' 'expert Endocrinology Evidence' 'professional Negligence List' 'civil Liability Act S 5 O' 'prejudice and Costs Thrown Away']

Case Brief

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Procedural Posture

Medical Negligence Proceedings; Notice of Motion for Leave to Serve Expert Evidence / Interlocutory Procedural Ruling

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted under r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) to serve an expert report from a second endocrinologist.' 'Whether the plaintiff had adequately explained the need for a second endocrinology report, including in light of the defence endocrinology evidence and s 5O of the Civil Liability Act 2002 (NSW).' 'Whether any prejudice to the second defendant from the service of a second endocrinology report could be addressed by costs orders and later objections.']

Ratio Decidendi

The plaintiff was permitted to serve a second endocrinology report because, although the fact that Professor Carter was retired was not alone sufficient, the complexity of the causation issues, the subspecialty matters raised by Dr D'Emden, the late service of the second defendant's endocrinology evidence, and the practical circumstance that two defence endocrinologists may be before the Court while the plaintiff had one supported leave. Any prejudice to the second defendant, including possible costs thrown away if the case were re-pleaded, could be managed by reserving costs and leaving admissibility and reliance on two experts to the list judge or trial judge.

Court Disposition

Notice of motion granted in part; plaintiff permitted to serve an expert report from a second endocrinologist, with costs in the cause and costs thrown away reserved.

Orders

  • ['Pursuant to r 31(28) of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff be permitted to serve an expert report from a second endocrinologist.' 'Such evidence is to be served on or before 28 February 2023.' 'The question of any costs thrown away by the second defendant as a result of a second...