Lawyers acting for a surgeon defending a medical negligence claim have been accused of potentially breaching their duty to act honestly and to avoid misleading the Court. The claim arose following a series of operations carried out by the surgeon for a knee ligament injury which resulted in serious complications including a bacterial infection.

The lawyers for the surgeon had sourced three expert reports in support of their defence; however, the expert subsequently wrote a fourth report expressing a contrary view to the earlier reports. The fourth report was not served until one day before the trial, despite being in the lawyers’ possession for almost two years.

Associate Justice Mossop found that the surgeon’s lawyers misled the Court and the other parties to the proceeding by creating the impression that the failure to serve the report was the result of an oversight rather than a deliberate decision.

An order was made to grant the plaintiff access to communications of the surgeon’s lawyers.