Indemnity costs order following experts’ conclave

Sorbello v South Western Sydney Local Health Network (No 2) [2016] NSWSC 1496 is of interest for its consideration of an application for indemnity costs following an expert witness’ conclave.

At the conclave, the defendant’s causation expert was shown MR imaging and as a result he came to an agreement with the other experts, that a period of severe sustained hypoxia-ischemia of 15-20 minutes was the most likely cause of the child’s MRI changes and that his pattern of injury was not that described to occur with chorioamnionitis.

Following that shift in opinion, the claimants sought admissions and later served offers of compromise.

Absent the admissions (until the eve of the trial) or acceptance of the offer of compromise, the court made costs orders in favour of the claimant in respect of the non-admission and in respect of the offer of compromise.

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