The High Court declined to direct a child plaintiff to apply for permission to call a second obstetrics expert in her personal injuries trial, while holding that the court rule limiting each party to one expert in a field on a particular issue applied to the case.
The ruling was made by Mr Justice David Keane on 22 January 2019, during a trial expected to last six to seven weeks. The plaintiff claims damages for catastrophic injuries sustained during her delivery at University Hospital Galway in August 2011. The HSE accepts it owed her a duty of care but denies breaching it. Two obstetricians sued over prenatal care also deny the claims.
The HSE sought a direction requiring the plaintiff to apply under Order 39, rule 58(3) of the Rules of the Superior Courts before calling Dr Paul Wood, in addition to consultant obstetrician Dr Mark Waterstone, whose evidence was underway. The other defendants supported the request. The plaintiff argued that the rule did not apply, or alternatively that permission should be granted.
The rule states that each party may offer evidence from one expert in a particular field on a particular issue unless the court permits otherwise for a special reason. Permission requires the court to be satisfied that an additional expert’s evidence is unavoidable to do justice between the parties.
The judge rejected the argument that the rule applied only where the court had first made a case-management order under a separate part of Order 39. He also declined to decide, based only on Dr Wood’s report and the evidence heard so far, whether the two experts would address the same issues. Those issues could change as the trial evidence developed.
The plaintiff had argued that the defendants’ own witness lists, which named two independent obstetrics experts each, led her to believe they would not object to her calling two. The judge rejected that argument: a party may withdraw reliance on a listed witness, and listing two experts does not amount to an irrevocable assurance that both will testify. Nor can parties disapply the rule by agreement.
He also rejected the claim that the HSE’s late identification of neonatologist Professor Wyatt provided a special reason to allow a second obstetrics expert on the same issues. The plaintiff’s lawyers remained free to bring a separate application concerning any alleged non-compliance over Professor Wyatt’s evidence.
The court did not order the plaintiff to apply for permission to call Dr Wood. The judge said he would allow a reasonable opportunity for an application on notice if the plaintiff wished to argue that particular aspects of the case justified both experts addressing the same issues. If no application were made and Dr Wood were called, the rule’s effect would be considered as his evidence was given. The judgment resolved this procedural issue; it did not determine liability or damages.