The Court of Appeal of Victoria has recently set aside orders made by a County Court judge prohibiting a defendant in a medical negligence claim from relying at trial on an infectious disease expert's report obtained by the defendant after mediation.
Claim that hospital was negligent in treatment of compound fracture
The case Kuipers v Northern Health (Unreported, County Court of Victoria, Judge Saccardo, 26 May 2015) concerned a claim of medical negligence by Mr Kuipers against Northern Health in the treatment of an open compound fracture in Mr Kuipers' left wrist in December 2009.
Mr Kuipers alleged that Northern Health was negligent in its management of his fracture, including by "failing to recognise the high risk of bacteriological contamination in the... wound" and by "failing to provide proper 'antibiotic cover'".
County Court makes orders for exchange or expert reports and mediation
Standard timetabling orders were made in the County Court proceeding, including orders as to the exchange of expert reports which included the following:
the proceeding is set down for trial on 1 July 2015 as a jury
by 4:00 pm on 3 October 2014 the parties are to exchange any medical and/or expert reports concerning damages and liability ("first exchange date")
by 21 November 2014 the parties are to mediate the dispute
no later than 28 days before the trial, the parties are to exchange any further medical and/or expert reports concerning damages and liability along with supporting documentation ("second exchange date")
Mediation fails and hospital obtains additional expert report
Both parties served their respective expert reports by 3 October 2014, the first exchange date. This included service by the respondent of a report by an infectious diseases expert.
Prior to mediation, the applicant discussed the claim with, but did not obtain and serve a report from, an infectious diseases expert.
The matter failed to resolve at mediation. Following the mediation, the applicant obtained a report from an infectious diseases expert and served it on the respondent six weeks before trial.
Claimant seeks orders prohibiting hospital from relying on post-mediation expert report
Mr Kuipers objected to the service of this report and made an application to the court seeking orders that the applicant be prohibited from relying on the report. His Honour Judge Saccardo agreed and granted the order sought on the basis the applicant had not complied with the timetabling orders.
Saccardo J interpreted the second exchange date to allow the parties to serve only supplementary reports from experts whose reports had been exchanged in accordance with the first exchange date; not fresh expert reports.
County Court rules that new expert reports cannot be introduced following mediation
In arriving at this conclusion, Saccardo J relied on the principles of case management outlined in the Civil Procedure Act 2010 (Vic), which is aimed at early and cost-effective resolution of disputes and the overarching obligations of parties in this regard.
At page 21 of his reasons, Saccardo J stated that mediations were to be conducted at a time at which the parties had exchanged expert evidence upon which they would rely, so that informed decisions could be made as to the strengths and weaknesses of the parties' respective positions.
An order allowing service of post-mediation reports would deal only with the exceptional circumstance in which an issue arose in the course of mediation requiring the parties to revisit the opinion they had sought, but did not allow them to recast their case by introducing new experts.
Saccardo J perceived the further exchange in this case to have the appearance of "expert witness shopping" and did not believe the applicant commissioned the further report with the aim of resolving the proceeding prior to trial.
Hospital appeals order prohibiting reliance on new infectious disease report
The applicant appealed the decision of Saccardo J on four grounds, the first of which was that it was unreasonable and unjust having regard to:
the significant prejudice that would be caused to the applicant in its defence of the claim
the absence of any irredeemable prejudice to the respondent
the time prior to trial in which the further report was served
its genuinely held construction of the order that service of further expert reports up to 28 days before the date fixed for trial was permitted
The other three grounds of appeal rested upon Saccardo J erring in his construction of the timetabling order, failing to take into consideration the prejudice to the applicant and failing to accept the bona fides of the applicant's position regarding the commissioning of a further report.
Scope of second exchange order held to be unclear
On 19 June 2015, in Northern Health v Robert Kuipers  VSCA 172, Honourable Justices Kyrou and McLeish of the Court of Appeal of Victoria set aside the County Court orders prohibiting Northern Health from relying on the post-mediation expert report.
Honourable Justices Kyrou and McLeish held on appeal that while it is readily apparent that the adjective "further" in the second exchange date order contemplates that the first exchange date is the time for exchanging primary reports and the second exchange date for exchanging supplementary reports, the scope of the second exchange order is unclear, as it does not specify the types of expert reports that are authorised to be exchanged.
Regardless, it was not necessary for their Honours to determine the proper construction of the order or whether the applicant had contravened it, as they held the applicant had made out the first ground of appeal.
Court of Appeal sets aside order of County Court
Their Honours set aside the order of Saccardo J and permitted the applicant to serve and rely on the further expert report for the following reasons:
the applicant had genuinely construed the intention of the second exchange date order to mean that it could serve a further report by that date
the applicant would be prejudiced by not being permitted to rely on the further expert report
the respondent would not suffer prejudice as the further report was brief, it raised no new issues and the respondent had sufficient time to obtain a further reply before the trial
the respondent did not submit that the service of the further expert report would jeopardise the trial date
Changes likely to overcome current ambiguity in Standard Orders of County Court
We expect that this decision is likely to lead to changes to the Standard Orders of the County Court to overcome the current ambiguity regarding exchange of expert reports, by permitting only supplementary expert reports to be exchanged by the second exchange date, specifying that no expert reports are to be served after mediation and requiring parties to seek leave to serve further expert reports after the first exchange date and/or after mediation.
This decision will have case management consequences for parties seeking to minimise costs before mediation by not engaging an expert at an early stage, or where further expert material is required in order to clarify issues raised at mediation.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.