Supreme Court New South Wales

• Medium Neutral Citation: Avery v Flood [2013] NSWSC 996
• Hearing dates: 24 July 2013
• Decision date: 24 July 2013
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

Directions given as to constitution of expert conclaves.

• Catchwords: EXPERT WITNESSES - conclave - how many conclaves - who should attend.
• Legislation Cited: Civil Liability Act 2002
• Category: Interlocutory applications
• Parties: Amanda Avery (Plaintiff); John Flood (First Defendant); Michael King (Second Defendant)
• Representation: Counsel: E.G. Romaniuk (Plaintiff); G.M. Gregg (Defendants); Solicitors: Edwards Michael Lawyers (Plaintiff); HWL Ebsworth (Defendants)
• File Number(s): 2010/133294

EX TEMPORE Judgment

1 The plaintiff, Amanda Avery, sues a surgeon and an anaesthetist for injuries she said that she had suffered as a result of breast reduction and breast reconstruction surgery that she underwent on 31 May 2007.

2 Her further amended statement of claim alleges that both the defendants were negligent. She also pleads that the actions of the defendants amounted to an assault or battery or trespass to her person because it is said they failed to obtain her consent, or at least her "informed consent", to the use of a particular drug and the insertion of a urinary catheter during the operation.

3 In March of this year orders were made to facilitate a meeting by the various experts, retained by the parties, with the purpose of them ultimately preparing joint reports.

4 The first step in that process was for the parties to agree on the composition of the expert conclaves. There was agreement reached over the composition of two conclaves concerning specific matters relating to damages, but there was no agreement over the composition of the conclaves concerning what I will describe as "breach and causation questions". As a result of this disagreement the parties brought the matter back to the Court. Thus the Court is required to give a direction as to the conferral by the expert witnesses in accordance with Uniform Civil Procedure Rules 2005 ("UCPR") r 31.24.

5 The boundaries of the dispute over the composition of the conclave are as follows. The plaintiff contends that there should be one combined conclave, involving all of the expert doctors retained by either side and who have provided reports concerning breach and causation. To explain this, it is necessary to say something further about those experts and the issues.

6 In broad terms there has emerged an issue about the conduct of the first and second defendants in inserting a urinary catheter during the operation and their use of an antibiotic agent known as gentamicin. It is said that that agent has ototoxic tendencies. In particular, the plaintiff contends that it was unsuitable for use in the operation or that, at the very least, the plaintiff needed to be specifically warned about the risk of using it and whether or not there were any available alternatives.

7 The plaintiff has retained a Professor Rawlinson, who is a medical virologist and infectious diseases physician, Dr Marshall, who is a plastic surgeon, and Dr McPherson, who is an anaesthetist. The defendants have retained Dr Baldwin, who is a plastic surgeon, Dr Forrest, who is an anaesthetist, and Dr Hudson who is an infectious diseases physician and microbiologist. They have also retained Professor Fagan, who is a neuro-otologist and skull based surgeon. In addition, the plaintiff has retained Dr Watson, a neurologist. In response, the defendants have retained Professor Halmagyi, neurologist.

8 The causation issue that I identified earlier is whether the plaintiff has suffered a loss of vestibular function as a result of anything that occurred during the operation. The bulk of Dr Watson's reports and all of Professor Halmagyi's reports have addressed that issue. In addition, Professor Fagan and Dr Hudson addressed that issue as well as issues directed towards breach and, in particular, whether any of the conduct of the first and second defendants fell below the appropriate standard and other matters raised by the defendants pleading the defence in s 5O of the Civil Liability Act 2002.

9 As I have said, the plaintiff contends there should be one conclave of all the experts. The defendants contend there should be two conclaves: one dealing with causation and involving Dr Watson, Professor Halmagyi, Professor Fagan and Dr Hudson, and another dealing with the breach issues involving the balance of the doctors that I have referred to.

10 The defendants contend that their position is more consistent with achieving the objectives of the just, quick and cost effective disposal of the proceedings. In particular, they point to the lower costs and lesser logistical difficulties associated with having a conclave of seven experts, as they contend for, compared with what would be nine experts on the plaintiff's proposal.

11 In broad terms, I do not give this factor much weight. The competing positions involve having one conclave, involving nine experts, and another with two conclaves, one involving seven experts and one involving four experts. I do not underestimate the task of getting all the experts together at one point in time but as a comparative exercise I doubt that one is easier or cheaper than the other.

12 More significantly the defendants point to the fact that if the conclave was to extend to the discrete causation issue that I referred to, it would mean a number of the experts would effectively be participating in a conclave on a matter in respect of which they had expressed no opinion whatsoever. The result of that would be that their time would be wasted or that a series of what might be irrelevant or unqualified opinions could be expressed. I think this is a factor deserving some weight. It is a matter that, in my view, warrants there being two conclaves as opposed to one. I do not see much utility in requiring Professor Rawlinson, Dr Marshall, Dr McPherson, Dr Baldwin and Dr Forrest to participate in a conclave dealing with the causation issue.

13 This observation leads to the most significant question raised by this assertion, namely whether Dr Watson should be permitted to attend the breach conclave and if he does, whether Professor Halmagyi should as well.

14 As a general proposition, it seems to me that, if a particular expert expresses an opinion on a particular point, then they should generally be required to participate in a conclave with all the other experts who address that issue. Equally, an expert who does not in their report profess an opinion on a particular topic or area should not be required or directed to attend a conclave in respect of a different area. The latter course is likely to lead to one of two results. Either the expert will have their time wasted, or they may end up professing an opinion on a topic they are either not qualified to or, if they are, there will be no underlying reasoning in any report extraneous to the joint report which justifies the opinion they have given.

15 In the case of Dr Watson, counsel for the defendants, Mr Gregg, has taken me to one part of one of his reports in which he was asked questions that appear to be of some relevance to questions of breach. Mr Gregg submitted that it is evident from his answers that Dr Watson was effectively stating that he was either not qualified to give an answer which was relevant to breach or was declining to do so.

16 Part of that report includes the following:

"6. Having regard to the known propensities of gentamicin as at 2007:

6.1 would you agree that it should be considered for prophylactic use only in patients with specific risk of developing endocarditis from genitourinary or gastrointestinal procedures, and would you agree, further, that as there is always a risk of vestibulotoxicity with gentamicin, regardless of dose or serum level, it should be given only as recommended by antibiotic guidelines and where there is no safer alternative? If so, why?

The potential for gentamicin to cause vestibular toxicity (along with renal toxicity) has been widely known for many years. It has been recognised in the literature since at least 2004 (see above) that vestibular toxicity is idiosyncratic rather than clearly dose or regime related. I am not entirely sure that the possibility of a single dose of gentamicin causing vestibular toxicity was widely appreciated prior to 2012, but I do consider that there were very reasonable grounds for caution in the sue [sic] of gentamicin in 2007 and therefore only using it where it was strongly indicated and a safer alternative was not available.

6.2 should that referred to in the above question have been the approach by reasonably skilled medical practitioners using gentamicin in 2007

I reiterate that even in 2007 the use of gentamicin in any clinical context should have been approached with caution and due consideration. I am not in a position to comment whether the particular indication for gentamicin in Amanda Avery's case was standard for the time or diverged from such standard practice."

17 Although on its face these passages do not seem to me to advance the plaintiff's case on breach particularly far, I do consider that they are at least capable of informing the approach that the Court may take to at least the questions posed by s 5B of the Civil Liability Act concerning the conduct of the first and second defendants.

18 Counsel for the plaintiff, Mr Romaniuk, submitted that they may also be relevant to rebutting the defence in s 5O of the Civil Liability Act. They may be relevant to that, although it is hard to see how they get close to establishing that any view held concerning the use of gentamicin was irrational. Notwithstanding my doubts about their ultimate utility, I consider there is enough in these passages to justify Dr Watson attending the breach conclave. Put another way, I think there would be an unacceptable risk of unfairness to the plaintiff from his exclusion from the joint conclave. Such unfairness could arise if the plaintiff sought at trial to make much of this material, but had been denied by a Court direction the opportunity for Dr Watson to answer such questions as he could concerning it during a conclave with the other experts.

19 Although it is not a significant matter, I should also add that allowing Dr Watson to attend the breach conclave will avoid the potential unfairness that may arise from the fact that Professor Fagan and Dr Hudson, who are both retained by the defendants, will have the opportunity to attend both conclaves.

20 Mr Gregg submitted that if I formed the view that Dr Watson should be entitled to participate in the breach conclave then as a matter of fairness Professor Halmagyi should do so given that he, like Dr Watson, is a neurologist. I think that is appropriate.

21 I will shortly make directions in accordance with UCPR 31.24 concerning the attendances and the issues generally to be addressed at the respective conclaves. Those directions are not meant to be in substitution for either the appropriate questions or sub-issues that should be directed to those experts.

22 I will also direct the parties to confer about the further steps necessary to be taken as a consequence of this judgment and they will have liberty to apply to provide short minutes of order effecting those steps.

23 Accordingly:

(1) I direct that the following expert witnesses confer on the subject matters of their reports, other than such parts of their reports as concern the cause of any injury alleged to have been suffered by the plaintiff: Professor Rawlinson, Dr Marshall, Dr McPherson, Dr Baldwin, Dr Forrest, Dr Hudson, Professor Fagan, Dr Watson and Professor Halmagyi.

(2) I direct that the following expert witnesses confer in relation to so much of their reports as concern the cause of any injury said to have been suffered by the plaintiff: Dr Watson, Professor Halmagyi, Professor Fagan and Dr Hudson.

(3) I direct the parties to confer in relation to the further directions necessary to give effect to the holding of joint conclaves and the preparation of joint reports.

(4) I grant the parties liberty to apply on one day's notice.

(5) I direct that the costs of today be each party's costs in the cause.

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Decision last updated: 25 July 2013