The Plaintiffs commenced an Action for medical negligence in the care of a 16 year old male who sustained a spinal cord injury. The Plaintiffs had served their expert reports pursuant to Rule 5.35, but, despite the Defendants having performed their medical examinations pursuant to Rule 5.41, and the Plaintiffs having requested these reports under Rule 5.44(3)(a), the Defendants had not delivered the rebuttal expert reports.

The Defendants applied for an Order compelling the Plaintiffs to produce certain test protocols and raw data upon which the Plaintiffs’ expert report was based, pursuant to Rule 5.44, which they claimed were required for their experts to complete the rebuttal reports. They argued that the information should be produced prior to Trial in order to avoid unnecessary costs and delay, in accordance with Rules 1.2 and 5.1. The Plaintiffs argued that the requested records were privileged. Further, Rule 5.44(3) governs the way in which disclosure must occur.

Justice Goss, noted that Rule 5.35 generally reflects a plaintiff’s onus to advance its Action. There is nothing in the Rules preventing a defendant from waiting to rely on Rules 5.41 and 5.44 until after the expert report of the plaintiff is produced. The mandatory disclosure under Rule 5.35 does not, however, include raw data, test protocols or documents which were used by the expert for their report. Her Ladyship stated further:

A party delivering a detailed written report of the health care professional’s findings and conclusions under Rule 5.44(3)(a) is entitled to receive, on request, every ME previously or subsequently made of the physical or mental condition of the person under Rule 5.44(3)(b). The continuing litigation privilege over related documents does not disappear until Rule 5.44(3) comes fully into play, in other words, when the reports under Rule 5.44(3)(a) have been provided, and a request has been made for Rule 5.44(3)(b) disclosure.

Justice Goss dismissed the Defendants’ Application for disclosure.