Ralston & Collins v Chaffey & Ors [2018] NSWSC 1994 is an interlocutory decision of Davies J, arising from the late service of expert evidence by the plaintiffs. The plaintiffs claim is one for wrongful birth damages, alleging negligence in screening for Down syndrome in about 2004.
The courts consideration of the application of late service of evidence needed to take into account the death of one of the defendants, Dr Wass, in 2016.
The plaintiffs accepted that exceptional circumstances must be demonstrated to warrant the granting of leave (UCPR 31.28). The court was not satisfied that exceptional circumstances existed. If they had existed, the court would have exercised its discretion to refuse leave because of prejudice to the second defendant (the estate of Dr Wass). Section 58 of the Civil Procedure Act 2005 (NSW) was also discussed.
Other than for an answer to one question in one of the new reports, the plaintiffs were refused leave to rely on the late expert evidence.