The decision of June Griffiths by her litigation guardian Deborah Anderson v ACT (No 2) [2025] ACTSC 226 is significant for plaintiffs in the ACT facing the sudden unavailability of a key expert witness shortly before trial.
It confirms that a serious, unforeseen medical emergency affecting an expert — especially one requiring major surgery and a lengthy recovery — can constitute exceptional circumstances under r 1241 of the Court Procedures Rules 2006 (ACT), allowing the court to grant leave to rely on a replacement expert report. Importantly, the ruling shows that the court does not insist on up-to-the-minute proof that the original expert remains unavailable at the date of the application; a clear, historical explanation of diligent efforts to monitor and respond to the expert’s condition is sufficient. This practical approach protects genuinely affected plaintiffs from being penalised by unpredictable health events, while still discouraging delay or tactical switches of experts.
Case background
This was a medical negligence claim commenced in 2022 against the Australian Capital Territory. The plaintiff, June Griffiths (through her litigation guardian Deborah Anderson), alleged negligent medical treatment. June Griffiths has since died, and the court consented to substituting Debra Anderson (as administratrix of her estate) as the plaintiff.
Key Issue: Replacing an Unavailable Expert
The trial was listed for early 2024 (estimated 5 weeks). Shortly before the hearing, the plaintiff’s vascular surgery expert, Dr Tomlinson, required urgent open-heart surgery and became unavailable for cross-examination. The hearing was vacated by consent.
The plaintiff promptly sought and obtained a replacement report from vascular surgeon Dr Ray Englund (dated 8 April 2024). Under r 1241, expert reports must be served in accordance with court directions, and a new/unserved report requires leave to be admitted. Leave for a replacement expert (rather than a mere update) is only granted if there are exceptional circumstances.
What the Plaintiff Showed
- Dr Tomlinson’s sudden illness forced the adjournment.
- The plaintiff maintained contact with him, learning he faced ~6 months recovery, planned to move to Queensland, and would be unfit for trial for several months (he was ~74 and semi-retired).
- Genuine inquiries were made (including a call on 8 April 2024 confirming ongoing limitations).
- A replacement expert was retained in late January 2024 and the report served in early April 2024.
- Dr Englund’s opinion was similar (but not identical) to Dr Tomlinson’s.
Defendant’s Opposition
The ACT argued there was no recent evidence proving Dr Tomlinson was still unavailable, and allowing a different expert could unfairly change the case the defendant had prepared to meet.
Court’s Reasoning and Decision
Chief Justice McCallum granted leave. Key points:
- The expert’s serious illness and resulting unavailability right before trial, combined with the plaintiff’s reasonable and prompt response, amounted to exceptional circumstances.
- The court is not required to be satisfied the original expert remains unavailable *today*; the historical circumstances adequately explained why the plaintiff reasonably switched experts.
- Had the plaintiff failed to act promptly, the court might have criticised them for not securing an alternative opinion when an earlier re-listing became possible.
- The principles from Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290* and Pryce v Dunlap [2016] ACTSC 338 were applied: exceptional circumstances are assessed on all the facts of the case.
- The similarity (with differences) between the reports was not decisive; the focus was on the legitimacy of the switch, not a detailed comparison.
Orders
1. Leave granted to rely on Dr Ray Englund’s report dated 8 April 2024.
2. Costs of the application to be in the cause.
3. Consent order substituting Debra Anderson as plaintiff.
Practical Takeaways
- In personal injury or medical negligence matters, r 1241 leave is likely where a key expert suffers a genuine, serious health setback close to trial and the client acts diligently to replace them. Detailed affidavit evidence of communications and decision-making is crucial. Current unavailability need not be proven if the earlier explanation is compelling.
- If your main medical expert suddenly becomes seriously ill and can’t attend court, your case isn’t automatically doomed. Courts can (and in this case did) allow a new expert’s report if your lawyer moves quickly and keeps records of efforts to resolve the problem. This decision gives reassurance that unexpected real-life events won’t automatically derail a valid claim.
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