Contested application by defendant to vacate hearing date

Iacovone v Raftos [2016] NSWSC 502 saw an application by a defendant to vacate a hearing date for assessment of damages, on the basis of late service of a supplementary rehabilitation physician’s report by the plaintiff.

Liability had been admitted in circumstances where a general practitioner misdiagnosed the plaintiff as having a panic attack and sent him home with a prescription for Xanax. Approximately 2 hours later the plaintiff suffered a very serious myocardial infarction (“MI”) resulting in cardiac arrest and hypoxic brain damage.

The defendant argued that the report supported a significant change in the care claim, which moved from a recommendation of eight hours of assistance per week to a recommendation for constant care plus case management. The defendant’s affidavit material covered a number of issues and the plaintiff sought to cross-examine the solicitor for the defendant – such leave was declined.

Centrally the defendant’s affidavit material indicated that the defendant’s expert:

…Dr Pascall will apparently be unable to provide a supplementary report before the hearing. In fact she will not be able to see him until August 2016 and then would require four to five weeks to provide a report. I was informed that she is unable to provide a further report without actually going to the plaintiff’s home and examining him there.

The court rejected the defendant’s application to vacate the hearing date, saying at [62]:

…It is difficult to see how time could not be found either before the hearing or during it for Dr Pascall to address Dr Buckley’s most recent report. She has already prepared a report and participated in the conclave. She is aware of the background to the matter and has already met with the plaintiff on one occasion. The only new information she has to address, other than the seizure of which she is already aware, is the assertion of the plaintiff’s mother that the plaintiff’s poor memory is such that he cannot cook for himself and hence needs full-time care. I find it difficult to accept that it is impossible for Dr Pascall address this discrete issue prior to or during the hearing. I note Ms Sanford’s submission that Dr Pascall cannot do so without visiting the plaintiff in his residence. Given that Dr Pascall has already agreed to be a witness in this case, I do not accept that if such a course is necessary it cannot be undertaken either before or during the two-week hearing if every effort is made to do so.

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