By Lisa Quilty, Partner

Factual Background

The plaintiff commenced proceedings in the ACT Supreme Court against Calvary Healthcare ACT (Calvary) seeking damages for medical negligence in relation to her assessment, diagnosis and treatment by the defendant when experiencing an ectopic pregnancy in 2019.

The plaintiff alleged that the defendant breached its duty to the plaintiff by discharging her rather than undertaking further investigations when she was first admitted to the hospital; and that she thus suffered physical and psychological injury.

These proceedings considered a number of questions relating to the defendant’s Further Amended Defence – specifically regarding whether a further supplementary expert report commissioned by the defendant was admissible.

Decision

The Court ultimately ordered that the further supplementary report was not admissible.

In reaching its decision, the Court noted that answers to 3 of the 6 questions posed to the expert had already been the subject of extensive evidence between the parties and in an expert conclave.

The remaining questions posed to the expert concerned the distress and stress experienced by women presenting to emergency departments with obstetric issues concerning pregnancy. Evidence had already been exchanged from experts who had considerable expertise to comment on the psychological issues in issue in comparison to the expert author of the supplementary report.

From this, the Court determined that given it already had evidence before it from experts with a higher degree of knowledge on the subject matter available, the proposed supplementary report was to be excluded.

Outcome and Comments

This case highlights the ACT Supreme Court’s approach regarding the admissibility of supplementary expert evidence, which can be summarised as follows:

• Whether the evidence goes to issues that were previously the subject of extensive evidence;
• Whether other evidence on issues is readily available; and
• Whether evidence will cause or result in an undue waste of time.

The Court emphasised that there will be scrutiny on the admissibility of expert evidence presented late in proceedings, particularly where such evidence does not offer any new information but rather reiterates evidence already addressed.

That is, does the late evidence introduce any new material?

The Court was evidently unwilling to admit evidence that may “cause or result in an undue waste of time” and has expressed that it has only a propensity to hear evidence that can “have a real bearing on the issues in dispute”.

This case underscores the critical importance of adhering to procedural rules, particularly regarding the timing and content of expert evidence and pleadings.