Perry v Dr Lennox [2012] NSWSC 1391

Perry v Dr Lennox [2012] NSWSC 1391

Leave was granted because the further expert reports were relevant to the proper medical and causation issues in dispute, the circumstances were exceptional within UCPR 31.28(4)(a), and the opposing parties had not established actual forensic prejudice sufficient to outweigh the need for the case to be determined on the basis of all available and relevant medical material. The plaintiff should not be artificially confined to a causation case that may be inconsistent with the expert evidence, and the defendants, including the fourth defendant, should likewise be permitted to rely on further responsive expert material.

Jurisdiction
Australia
Judgment Date
16 November 2012
Procedural Posture
Common Law Personal Injury Proceedings; Procedural Ruling on Expert Evidence / Notices of Motion by the Plaintiff and the Fourth Defendant Seeking Leave Under UCPR 31.28 to Serve and Rely on Further Medical Reports After a Part Heard Trial
Outcome
Leave granted to the plaintiff and the fourth defendant to serve and rely on the further medical reports referred to in their notices of motion filed 23 October 2012 and 25 October 2012.
Legal Topics
['expert Evidence' "disclosure of Experts' Reports" 'ucpr 31.28' 'exceptional Circumstances' 'forensic Prejudice' 'amendment of Pleadings']
['civil Procedure' 'evidence' 'medical Negligence' 'personal Injury'] ['expert Evidence' "disclosure of Experts' Reports" 'ucpr 31.28' 'exceptional Circumstances' 'forensic Prejudice' 'amendment of Pleadings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Personal Injury Proceedings; Procedural Ruling on Expert Evidence / Notices of Motion by the Plaintiff and the Fourth Defendant Seeking Leave Under UCPR 31.28 to Serve and Rely on Further Medical Reports After a Part Heard Trial

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under UCPR 31.28 to serve and rely on further expert medical reports served after the hearing had commenced' 'Whether the fourth defendant should be granted leave under UCPR 31.28 to serve and rely on further expert medical reports' 'Whether the late expert reports would cause relevant forensic prejudice to other parties' 'Whether the circumstances were exceptional for the purposes of UCPR 31.28(4)(a)' 'Whether the plaintiff should be confined to a pleaded causation case focused on about 2125 hours on 26 June 2006 despite later expert evidence suggesting a dose-related injury over a longer period']

Ratio Decidendi

Leave was granted because the further expert reports were relevant to the proper medical and causation issues in dispute, the circumstances were exceptional within UCPR 31.28(4)(a), and the opposing parties had not established actual forensic prejudice sufficient to outweigh the need for the case to be determined on the basis of all available and relevant medical material. The plaintiff should not be artificially confined to a causation case that may be inconsistent with the expert evidence, and the defendants, including the fourth defendant, should likewise be permitted to rely on further responsive expert material.

Court Disposition

Leave granted to the plaintiff and the fourth defendant to serve and rely on the further medical reports referred to in their notices of motion filed 23 October 2012 and 25 October 2012.

Orders

  • ['Grant leave to the plaintiff to serve and rely on the reports of Ms Robyn Quinn dated 23 April 2012, Ms Robyn Quinn dated 8 May 2012, Dr Ian Woodforth dated 6 June 2012, Dr John Raftos dated 4 May 2012, Dr Herkes dated 17 August 2012 and a further report of Dr Kidd.' 'Grant leave to the fourth defendant to serve...