Background
Vhari Johnstone sued South Western Sydney Local Health District over injuries she alleges resulted from the use of forceps during the 2020 delivery of her son at Bowral and District Hospital. She alleges negligence and breach of the Australian Consumer Law guarantee that services be rendered with due care and skill.
After serving four obstetric reports from Professor Michael O’Connor, the plaintiff obtained two reports from another obstetrician, Dr Robert Buist, following an unsuccessful mediation and the engagement of senior counsel. She sought leave to rely on those reports and to amend her statement of claim to reflect Dr Buist’s analysis. The defendant opposed the application, including on expert-shopping, delay, efficiency and prejudice grounds.
The Court’s Holding
Sirtes J extended the time for the plaintiff’s liability evidence, permitted her to rely on Dr Buist’s reports dated 18 March and 2 April 2026, and granted leave to file the proposed amended statement of claim. The amended pleading slightly recast and narrowed the liability case, while adding an allegation concerning failure to inspect and properly repair a tear.
The Court accepted that the plaintiff’s explanation for obtaining fresh evidence could have been fuller, but inferred that the failed mediation and subsequent engagement of King’s Counsel prompted a reconsideration of litigation strategy. There was no allocated hearing date, no relevant expert conclave had occurred, the defendant could answer the new evidence, and the amendment was slight. The Court considered the revised case potentially more succinct and capable of streamlining the issues.
Key Takeaways
- Leave to adduce a new expert report may be granted despite earlier expert evidence where it enables a party to recast its case and does not materially delay the proceedings.
- Concerns about expert shopping carry less weight where the party will rely on the new expert rather than run overlapping liability opinions.
- The plaintiff had to pay the defendant’s costs thrown away by the pleading amendment; broader costs associated with abandoned liability aspects of the earlier expert evidence were left for the trial judge.
Why It Matters
The decision illustrates the NSW Supreme Court’s discretionary approach to late expert evidence and pleading amendments under the Civil Procedure Act 2005 (NSW). The overriding objective of just, quick and cheap resolution does not prevent a litigant from refining its case where prejudice can be managed and the change may narrow the issues.
For medical-negligence litigants, the ruling also underscores that a party seeking to substitute a more useful expert opinion should provide an explanation for the change, but incomplete explanation will not necessarily be fatal where the procedural consequences are limited.