The Supreme Court has dismissed an appeal by David Payne in a dispute over whether an earlier medical expert report had to be disclosed in his negligence action. It held that all reports from an expert intended to testify must be produced if they contain any part of the substance of the evidence the expert is to give, even where a later report develops or modifies the earlier views.
The appeal concerned Dr Peter Harvey, a consultant neurologist. He prepared a preliminary report in August 2001 after reviewing records provided by Payne’s solicitor. A more detailed report followed in April 2004. The solicitor’s affidavit said Dr Harvey’s views had developed after consulting other specialists, reviewing additional clinical history and considering a hospital drug administration chart that had been reconstructed from pharmacy records.
Payne’s action alleged negligent medical treatment at St Vincent’s Hospital in November 2000. According to the affidavit described in the judgment, he was taking Warfarin and was treated with Clexane. It alleged that the combined effects of the drugs and a failure to monitor the Clexane therapy led to a cerebral bleed and severe injuries. These were allegations in the underlying proceedings, not findings in this appeal. The judgment records that proceedings against the third named defendant had been discontinued in February 2003.
The High Court had directed Payne to disclose both Dr Harvey’s preliminary and later reports under Order 39, Rule 46 of the Rules of the Superior Courts. Payne argued that only the report setting out the evidence intended for trial had to be disclosed. The defendants submitted that the rules required disclosure of every report containing any substance of the intended evidence, unless the court granted relief under a separate rule.
Delivering judgment on 9 February 2006, Kearns J said the relevant test was whether the earlier report contained the substance, or part of the substance, of the evidence intended to be given. The fact that the expert’s views were later altered, qualified or developed did not remove the disclosure obligation. The court said the High Court had been right to order disclosure, but that prejudice to the plaintiff was not the governing test in this appeal; prejudice would be relevant to an application under Rule 50, which was not before the Supreme Court.
The court dismissed the appeal. It did not decide whether reports commenting on an opponent’s expert evidence had to be disclosed: no appeal had been brought on that issue. Nor did it rule on whether disclosure extends to matters that may arise in cross-examination.