Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724

Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724

Dr Milder's opinion was admissible because, although he was not a Neurosurgeon, his training, study and experience as a Consultant Neurologist and Fellow in Neuropathology gave him specialised knowledge of the brain, nervous system, neuroanatomy, physiology and pathology on which his opinions were based. Rule 31.28 governed the admissibility of Dr Webster's report, and there was no basis to dispense with that rule under s. 14 of the Civil Procedure Act 2005 (NSW). However, despite the plaintiffs' solicitor's unsatisfactory failure to comply with prior orders for service of expert evidence, exceptional circumstances existed because attempts had been made to obtain neurosurgical evidence,...

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Common Law Proceedings Alleging Negligence by a Neurosurgeon and Related Nervous Shock Claim / Defendant's Notice of Motion Seeking Joint Hearing Orders and Orders Excluding Expert Reports From Evidence and Expert Conclaves
Outcome
Leave granted to the plaintiffs to tender Dr Webster's report; defendant's notice of motion otherwise dismissed; proceedings ordered to be heard together; costs reserved.
Legal Topics
['expert Evidence' 'admissibility of Expert Opinion Evidence' 'specialised Knowledge Under S. 79 of the Evidence Act 1995 (nsw)' 'disclosure and Service of Expert Reports' 'exceptional Circumstances Under R. 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)' 'case Management']
['evidence' 'practice and Procedure' 'medical Negligence'] ['expert Evidence' 'admissibility of Expert Opinion Evidence' 'specialised Knowledge Under S. 79 of the Evidence Act 1995 (nsw)' 'disclosure and Service of Expert Reports' 'exceptional Circumstances Under R. 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)' 'case Management']

Case Brief

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Procedural Posture

Common Law Proceedings Alleging Negligence by a Neurosurgeon and Related Nervous Shock Claim / Defendant's Notice of Motion Seeking Joint Hearing Orders and Orders Excluding Expert Reports From Evidence and Expert Conclaves

Legal Issues

  1. 1 ['Whether the opinion of Dr Milder was admissible having regard to s. 79 of the Evidence Act 1995 (NSW).' 'Whether r. 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) governed the admissibility of the report of Dr Webster.' 'Whether the operation of r. 31.28 should be dispensed with under s. 14 of the Civil Procedure Act 2005 (NSW).' "Whether exceptional circumstances within r. 31.28 justified admitting Dr Webster's report despite late service." "To what extent provisions of the Civil Procedure Act 2005 (NSW) impacted upon admissibility of Dr Webster's report."]

Ratio Decidendi

Dr Milder's opinion was admissible because, although he was not a Neurosurgeon, his training, study and experience as a Consultant Neurologist and Fellow in Neuropathology gave him specialised knowledge of the brain, nervous system, neuroanatomy, physiology and pathology on which his opinions were based. Rule 31.28 governed the admissibility of Dr Webster's report, and there was no basis to dispense with that rule under s. 14 of the Civil Procedure Act 2005 (NSW). However, despite the plaintiffs' solicitor's unsatisfactory failure to comply with prior orders for service of expert evidence, exceptional circumstances existed because attempts had been made to obtain neurosurgical evidence,...

Court Disposition

Leave granted to the plaintiffs to tender Dr Webster's report; defendant's notice of motion otherwise dismissed; proceedings ordered to be heard together; costs reserved.

Orders

  • ['Proceedings 2015/00283601 and 2015/00283267 are to be heard together.' 'The notice of motion and supporting affidavits of Leonie Ruth Beyers filed in proceedings 2015/00283610 are also read in proceedings 2015/00283267.' 'Leave is granted to the plaintiffs to tender the report of Dr Webster pursuant to r. 31.28(3)...