Spillane bht Spillane v South Eastern Sydney Local Health District [2026] NSWSC 895 (Link to Caselaw).
In a birth trauma claim, the plaintiff had served expert reports of a neonatologist (Dr McPhee) and occupational therapist and later sought leave to serve additional reports authored by a different neonatologist and occupational therapist.
In this interlocutory decision the plaintiff was given leave to do so, on the basis that the plaintiff could not then rely on reports from the initial experts.
The plaintiff’s application in relation to the neonatologist (Professor Mitchell) arose following service by the defendant of a neonatology report which appears to have addressed current knowledge in relation to foetal inflammatory response syndrome (‘FIRS’), cooling therapy for HIE and outcomes following therapeutic cooling. The plaintiff also relied on the fact that Professor Mitchell and Dr McPhee gave different opinions about the causal role of FIRS. Professor Mitchell said that if FIRS played a role, he would expect to see indications that do not appear in the evidence, while Dr McPhee opined that FIRS played a role by increasing the plaintiff’s sensitivity to the HIE.
Similar issues arose in relation to the occupational therapists. In the circumstances of this case, leave to rely on a new OT was warranted, provided it did not lead to evidence being adduced from more than one occupational therapist.
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