Irfan v Western Sydney Local Health District [2025] NSWSC 68
Key Takeaways:
- While courts generally restrict the use multiple experts in the same specialty, exceptions can be made in complex cases, especially where different subspecialties are involved.
- Experts with niche qualifications, such as neurointerventionists in stroke cases, may be deemed necessary even if a broader specialist (e.g., neurologist) has already provided an opinion.
- Discrepancies in an expert's reports can open the door for opposing parties to introduce additional experts to challenge or clarify those inconsistencies.
In this case, the Court ruled that the restriction upon multiple experts should yield to the plaintiff's concern to explore the comparison between the clinical indications for thrombolysis and clot retrieval.
Background
This decision involved a negligence claim regarding the treatment of a stroke patient.
In an earlier decision of Irfan v Western Sydney Local Health District [2023] NSWSC 845, Harrison CJ at CL rejected an application by Mr Irfan to rely upon the medical report of Prof BY, a neurointerventionist, on the basis that the report appeared to be "an application to rely upon more than one expert in the same field of specialty", since evidence of an expert neurologist, Dr RB, had already been served.
However, due to developments in the case, Mr Irfan sought leave to rely on the expert report of Prof BY, because a potential issue has arisen about the specialised neurosurgical issue of clot retrieval, where Prof BY is a highly qualified expert, and Dr RB's reports, to the extent that they deal with that issue, were considered insufficient for Mr Irfan's purposes. The defendant argued that Dr RB is highly qualified to provide an opinion on the matter and that Mr Irfan's application violates the restriction on relying on multiple experts in the same specialty.
Expert evidence
Prof BY, a dual-trained neurologist and endovascular neurointerventionist, specialises in treating acute stroke, aneurysms, and arteriovenous malformations. The defendants believe Mr Irfan's insistence on relying on Prof BY stems from discrepancies between Dr RB's reports dated 2 March 2023 and 31 March 2023.
However, the Court found that Prof BY's 22 March 2023 report was served on the first defendant on 28 March 2023, while Dr RB's reports were served later, on 3 April 2023. Prof BY was the first neurology specialist presented to the first defendant, yet they objected to his report but not to another which was served later. [at 20]
The Court said that the defendants' concerns about disruption, cost, and delay must be weighed against the potential procedural impacts on both parties of admitting the evidence. The defendant's counsel noted, during an exchange with the Judge on this issue, that the defendant's case may not necessitate further expert evidence in response to Prof BY being called. In those circumstances, the Court found (at [22] - [23]) that the "spectre" of the defendant's needing to call further expert evidence "seem[ed] more apparent than real".
While Practice Note SC CL 7 discourages excessive expert evidence, it does recognise that complex medical negligence cases may require multiple experts. This case was found to justify an exception to the general rule, asProf BYcould offer an objective view on inconsistencies in Dr RB's reports and provide a unique perspective.Given the circumstances, the Court held that the rationale for limiting multiple experts should give way to Mr Irfan's need to examine the comparison between clinical indications for thrombolysis and clot retrieval. The Court thus allowed Mr Irfan's motion.[at 24-26] and he was given leave to rely on the specialised report of Prof BY, notwithstanding the previous rejection and the objections of the defendant.
Read the full decision here.
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