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[2012] NSWSC 1557
Supreme Court of NSW
2012-12-14
Campbell J
Original judgment source is linked above.
Judgment 1On 6 December 2012 I made an advanced ruling under s.192A Evidence Act 1995 (NSW) ("the Act") that the evidence of Professor Thomas Borody was admissible. His statement was received for the purpose of the ruling as MFI 2, and is now Ex. D4. I postponed the pronouncement of reasons to enable the defendant to be further cross-examined about matters relevant to Prof. Borody's involvement before he was called when available later that day. These are my reasons for my ruling. 2The plaintiff sues the defendant for damages for personal injury occasioned by the defendant's alleged professional negligence as a general medical practitioner. (A claim in the tort of deceit has now been abandoned). 3The injury said to have been caused by the asserted negligence is the progression of a pre-existing fatty liver degeneration, or disease, to cirrhosis, liver failure, and, eventually, cancer. This progression is said to have been avoidable by the exercise of reasonable care on the part of the defendant. 4Central to the plaintiff's case in negligence is that reasonable care required the defendant to refer the plaintiff to a specialist hepatologist, or other relevantly qualified specialist, for the assessment and treatment of his liver condition. It is said that had that occurred from about the time that the plaintiff was first referred to Prof. Borody in October 1997, a liver biopsy would have been undertaken to accurately assess the degree of progression of the disease which at that time probably would not have included cirrhosis, and that a proactive, multidisciplinary regime of treatment would have been instituted which would have arrested the progress of the liver condition by treating the plaintiff's co-morbidities of morbid obesity, diabetes mellitus and metabolic syndrome. The argument proceeds on the basis that, given the plaintiff's long struggle with his weight, enjoying only partial success in the past with regimes based on lifestyle changes such as diet and exercise, the probabilities favour further referral to a general surgeon to undertake bariatric surgery. 5Prof. Borody is not a hepatologist. He is a specialist gastroenterologist. The treatment of liver disease is outside his sphere. However, the defendant referred the plaintiff to Prof Borody in October 1997 for the investigation, inter alia, of right quadrant upper abdominal pain, and he treated the plaintiff, in his words, on various occasions between 29th October 1997 and 27th February 2000. 6Prof. Borody was formerly the second defendant in this claim, but the plaintiff consented to judgment in his favour in or about September 2012. 7In his statement, Prof Borody provides a narrative of his treatment of the plaintiff and expresses the view that although he was aware from the outset of his treatment of the plaintiff's fatty liver syndrome, he would not have referred the plaintiff for assessment for the purpose of bariatric surgery. During the period 1997 to 2003, he had referred some patients to bariatric surgeons but never in relation to the management of a patient with fatty liver syndrome. He is not a surgeon, but he stated his belief at that time about the effectiveness of the surgery in the management of morbid obesity and expresses the view that in any event, for reasons he fully rehearses, the plaintiff was not a suitable candidate for that surgery. 8During the course of argument Mr. Higgs SC, who appears with Dr. Peden for the defendant, did not press the concluding clause of paragraph 20 and the whole paragraph 25, of what was then MFI 2. Senior Counsel also accepted that paragraph 24 and other apparent expressions of opinion contained in the statement should be limited under s.136 of the Act to mere statements of belief on the part of Professor Borody. That is, Senior Counsel was not calling Professor Borody and tendering his statement as expert opinion evidence in the case. 9Mr. Graham SC, who appears with Mr. Broadbent for the plaintiff, objects to the admission of the evidence. Senior Counsel accepted that the evidence is relevant within the meaning of s.55 of the Act and therefore, prima facie, admissible under s.56. It was submitted, however, that regardless of how it is characterised by the defendant, the gravamen of the evidence contains matters of opinion and accordingly the opinion rule created by s.76 operated to exclude what otherwise might have seemed admissible. It was submitted that, to the extent to which the opinions are expert opinion within the exception to the opinion rule created by s.79 of the Act, the important requirements of Part 36 of the Uniform Civil Procedure Rules 2005, which govern the admission of expert evidence at a hearing, have been infringed at a number of different levels, including Rule 36.23 concerning the need for the expert at the time the opinion was expressed to articulate that he had read the code of conduct and agreed to be bound by it. To the extent to which some of the infringements were capable of being cured by the favourable exercise of my discretion, no case calling for such an indulgence had been made out. Moreover, Senior Counsel argued that were I otherwise satisfied that the evidence was properly admissible, I should exclude it under s.135 of the Act on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff. 10In regard to s135, Senior Counsel made the following points: (a)The first notice the plaintiff received of the intention to introduce this evidence was during Mr. Higgs' opening remarks outlining the case for the defendant. He had not seen the statement prepared at my direction, after he foreshadowed his objection during Mr Higgs opening, until the morning of 5th December 2012. The case involved complexity and he had not had sufficient time to fully consider the content of the statement and its possible ramifications for the plaintiff's case; (b)As the case had been expedited because of the plaintiff's terminal illness, and possible imminent demise, an adjournment, which might ordinarily be a remedy in such circumstances, was not practicable. The effect of an adjournment would be devastating to the plaintiff personally, and possibly to his claim for damages; (c)No satisfactory explanation had been given for the late service of Prof. Borody's statement. Ordinarily in a matter in the Professional Negligence List witness statements are exchanged well before the hearing. However, I interpolate, in the present case, because of the order for expedition, the case has not been managed in accordance with the usual considerations. (d)As Prof. Borody was a treating specialist he was in a confidential relationship with the plaintiff. Permitting the defendant to call him breaches that confidence. 11As to the probative value of Prof Borody's evidence, the following points were made: (a) The statement has been prepared more than 13 years after Prof Borody ceased his therapeutic role in relation to the plaintiff. The better evidence in relation to what he did and why will be found in his contemporaneous records; (b) Connected with (a) is the idea that a statement prepared so late in the piece, which extends beyond material not articulated in the professor's notes, can only be a reconstruction of a self-serving nature; (c) These considerations really mean that the evidence of Prof. Borody is likely to be of such little weight that the unfair prejudice must outweigh its probative value.
Discussion 12The starting point is the determination of whether the evidence is relevant. That question has to be considered in the light of the finding that the party tendering the evidence will ask the tribunal of fact to make in due course in the light of it: Dasreef Pty Ltd v. Hawchar (2011) 243 CLR 588 at 602 [31]. 13The defendant says that Prof. Borody's evidence is relevant to the question of causation, always bearing in mind that the plaintiff carries the onus in this regard: s.5E Civil Liability Act 2002 (NSW). The thrust of the evidence is that Prof. Borody was aware of the availability of bariatric surgery in the period 1997 - 2000 during which he treated the plaintiff. Although he was not a hepatologist, he did not regard it as a treatment for fatty liver disease, even in an obese person. And for reasons he explains, he would not have regarded the plaintiff as a suitable candidate for it. His experience was that the results of bariatric surgery were, at best, mixed. The defendant says that this evidence is relevant in determining the hypothetical question of what would have happened had a consulting specialist turned his or her mind to the question at the relevant time. 14In my judgment, Prof. Borody's evidence, if it were accepted, could rationally affect, at least indirectly, the assessment of the probability of the existence of a fact in issue, namely whether, had the defendant referred the plaintiff to a specialist for consideration of the question of his suitability for bariatric surgery, the consultant would have recommended that modality of treatment. The evidence is accordingly relevant, and prima facie admissible. 15The next question is whether the evidence is opinion evidence. As I understand Mr. Graham's argument, if the evidence is of opinion, he accepts that the s.79 exception to the opinion rule created by s.76 of the Act applies. As I have summarised, his complaint is non-compliance with the rules. 16The Act does not define "opinion". It may be accepted for present purposes that in substance, an opinion is an inference drawn or to be drawn from observed and communicable data: Allstate Life Insurance Co. v. ANZ Banking Group Limited (No. 5) (1996) 64 FCR 73 at 75; Lithgow City Council v. Jackson (2011) 244 CLR 352 at 358 - 9 [10]. 17Having regard to what I have said about the relevance of the evidence, I have formed the view that it is not opinion evidence. In Seltsam Pty Ltd v. McNeill [2006] NSWCA 158; 4 DDCR 1, Bryson JA (with whom Handley and Tobias JA) agreed, said at 37 [115]: Where the state of a person's mind is a relevant fact, there can I think be no doubt of the admissibility of evidence by that person about the state of his mind. I see no room for a supposition that such evidence is opinion evidence. It is a commonplace for a person to give evidence about what his state of mind would have been in some contingency which did not happen; for example, that if he had known some fact, he would not have decided to act as he actually did. After reviewing relevant authorities, his Honour concluded (at 40 [123]): ... I do not find it possible to see evidence given by a person about his state of mind, in an actual or hypothetical situation, as an opinion. The state of a person's mind is a fact and remains a fact whether what is under the discussion is an actual state of mind, or the state in which a person's mind would be in some contingency which has not happened. The strongest theme of dissatisfaction with such evidence is its lack of reliability because of its self-serving nature, given as the evidence is when it is known with hindsight that the subject is of importance to the party who gives the evidence. This source of dissatisfaction is not in my opinion a reason in principle for rejecting the evidence; if it is relevant it is admissible, and this source of dissatisfaction is to be met by taking appropriate care in deciding whether the evidence is to be believed, which remains a decision of fact. 18Given that I have ruled that the evidence is admissible as evidence of the state of Prof. Borody's mind, extending to his understanding of the efficacy of bariatric surgery at the time he treated the plaintiff, I consider Bryson JA's analysis applicable and, indeed, with respect, binding on me. Accordingly, in my view the evidence is not opinion evidence, notwithstanding that Prof. Borody is obviously an expert, and, therefore, the rigours of Part 36 of the Uniform Civil Procedure Rules 2005 are not engaged. 19Bryson JA's reference to dissatisfaction with hypothetical evidence of this type brings Mr. Graham's argument about s.135 of the Act into play. I will deal with the questions in the order in which Mr. Graham argued them. But I must say that I am unconvinced that there is any unfair prejudice in the admission of Prof. Borody's evidence. In making this finding, I have assumed that the idea of unfair prejudice extends beyond the risk that I might misuse the evidence in some unfair way, to covering procedural disadvantages that the plaintiff may suffer by its admission: Papakosmas v. The Queen (1999) 196 CLR 297 at [93]. 20I accept that the plaintiff had no expectation that Prof. Borody would be called to give evidence. It may have been natural for the plaintiff's legal advisors to think that with judgment in his favour, he would depart the forensic field. However, as no order had been made for the exchange of witness statements (although to a large extent, that has occurred) the failure to provide the statement of Prof. Borody cannot be viewed as a delinquency on the part of the defendant. This being so, no obligation fell upon him to provide any explanation for not giving notice of the intention to call Prof. Borody prior to the opening, nor for failing to serve a statement. Indeed, when the dispute arose following Mr. Higgs' opening, I directed that a narrative of the evidence it was expected Prof. Borody would give be provided as soon as possible. The defendant, it must be said, did better. It provided a signed statement, MFI 2. 21So far as there may be forensic disadvantage in unexpectedly having to cross examine Prof. Borody "on the run", as it were, I offered to require that the scheduling of his evidence be delayed to provide more time to Senior Counsel to prepare. Mr. Graham, when given the choice made an election not to seek that indulgence. I very much appreciate the vicissitudes attendant upon the expedited hearing of the matter, especially from the plaintiff's view-point, but they are inherent and do not of themselves call for the exclusion of evidence otherwise admissible. 22For my own part, I cannot conceive of the reference to a breach of doctor-patient confidentiality between the plaintiff and Prof. Borody as a matter at all capable of being described as unfair prejudice in any sense in which that phrase ordinarily might be understood. Calling treating doctors to give evidence is commonplace in personal injuries litigation. And it is not unusual for the defendant to be the party calling the doctor. 23In any event, MFI 2 does not disclose any communication between the doctor and the patient. It provides a narrative of the course of the therapeutic relationship and provides direct evidence of the state of Prof. Borody's mind in relation to relevant questions. No confidence is actually disclosed. Moreover, the confidential doctor and patient relationship is not one which the general law supports with an immunity from disclosure vested in the patient per se. 24Division 1A of Part 3.10 of the Act provides a discretionary exclusion in some cases. These express provisions were not invoked by Mr. Graham. It seemed to me that no direction under s.126D was called for because there was simply no question that the plaintiff would suffer harm, as defined, if the evidence was adduced. I reiterate that in any event, the proposed evidence of Prof. Borody (and his evidence in fact) did not disclose any confidence passing between him and the plaintiff. 25The preconditions necessary to require an exercise of the s.126B(4) discretion have not been satisfied. 26Had I been wrong about the questions relevant to the possibility of the plaintiff suffering harm by disclosure of a confidence, it seems to me that any harm that would or might be caused did not outweigh the desirability of evidence being given by Prof. Borody, having regard to the matters referred in s.126B(4) which I find it unnecessary in the circumstances to fully expound, notwithstanding s.126B(5). The matters referred to below relating to s.192(2) are germane. Moreover the details of the plaintiff's medical condition about which he consulted Prof. Borody are already in evidence, as is the course of treatment undertaken. There is no way of obtaining evidence of Prof. Borody's state of mind other than by hearing from him. 27Turning to the question of the probative value of Prof. Borody's evidence, the points discussed at [11] (a) and (b) hereof are certainly factors which will affect the weight that may be accorded to the evidence in due course. I should add however, given that Prof. Borody is no longer a party to the proceedings, it would be unfair to refer to his evidence as being "self-serving". That tag, in my view, can only affect the evidence of a party, who has something to gain or lose in the proceedings. But it must be borne in mind that it is the plaintiff who brings this action so long after the events with which it is concerned. This comment is not directed to the defendant's limitation defence. Rather, the evidence of every witness, other than the recently qualified experts, is burdened with this self-same disadvantage. Much evidence in many cases consists of reconstruction by reference to contemporaneous notes, the witness' usual practice, and an appreciation of probability in human affairs. These considerations do not render evidence inherently suspect, as it were. 28But, doubtless, the reasons given by Bryson JA in McNeill demonstrate that "state of mind" evidence given long after the event, with the benefit of hindsight, needs to be weighed with appropriate care in deciding whether the evidence is to be believed or is otherwise reliable. This consideration does not rob the evidence of probative value, nor require slight weight only be attributed to it 29In my judgment, the s135 discretion has not been engaged. 30Had it been otherwise, by reference to the factors identified in s.192(2) of the Act, I would have admitted the evidence: the evidence is unlikely to lengthen the hearing; as I have said its admission is not unfair; if accepted, the evidence is of some importance to the defendant's case; and the proceedings are before a Judge alone. All these considerations favour admission of the evidence. On the other hand, case management considerations, the subject of s.192(2)(e), because of the order for expedition, and the plaintiff's terminal illness, making an adjournment impracticable, may be matters favouring the exclusion of the evidence. On balance, I would have decided, if necessary, that the evidence should have been admitted. 31Because of the argument, in the way it was put, about potential breach of confidence, I turn my mind to the provisions of s.138 of the Act. As I have said, in my judgment the evidence discloses no confidence. It cannot be said that in speaking with Prof. Borody the defendant obtained his evidence improperly or in contravention of an Australian law. No specific law was identified. At one stage, of course, Prof. Borody and the defendant had a commonality of interest in defending these proceedings. Mr. Higgs explained that his solicitors had received information about evidence Prof. Borody might be able to give whilst that commonality of interest inured. Mr. Graham made no complaint about that matter. The plaintiff did not raise s.138 and it is not necessary for me to say anything more about it. 32Subject to Prof. Borody being available for cross-examination, I rule that the evidence contained in MFI 2, subject to the withdrawal of those passages I have earlier referred to, is admissible and I admit it as Ex D.4. For abundant caution, and in accordance with Mr. Higgs' application, I limit the use that may be made of Exhibit 4 pursuant to s.136. The evidence is admissible as original evidence of the state of Prof. Borody's mind at the relevant time and not as evidence of expert opinion, s.60 of the Act notwithstanding.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2012
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