Reliance on an opposing expert witness

Tinnock v Murrumbidgee Local Health District [2016] NSWSC 86 was an interlocutory judgment covering a number of issues against the background of the claim arising from an incisional hernia  & infection following a caesarean section, performed by a surgical registrar.

Of most interest is a discussion of the plaintiff’s wish to call in her case evidence from a medical practitioner who had been retained by the defendant as an expert witness and had participated in an expert witness conclave. The defendant objected to the tender of reports written by that witness on the basis of legal professional privilege (at [43]). The court held at [44], permitting the plaintiff to rely on the expert witness:

“I am satisfied also that his opinions as expressed in the joint report and the opinions he may hold do not depend in any substantial or material way upon any confidential communication passing between him and the solicitors for the defendant. Moreover, there can be no suggestion whatsoever that his participation in the conference of experts and his subscription to the opinions expressed in the joint report is in anyway subject to legal professional privilege.”

The defendant was given leave to withdraw a formal admission, partly as it was ambiguous: see [34]. The plaintiff was given leave to amend her statement of claim: see [47].

The court referred to, but did not need to deal with, an intentional tort pleading (at [4]).



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