Harris v Bellemore

CATCHWORDS : EXPERT EVIDENCE - s 108C Evidence Act - expert evidence going only to credibility of defendant doctor.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Evidence Act 1995

CASES CITED : Rogers v Whittaker (1992) 175 CLR 490

TEXTS CITED : Odgers, Uniform Evidence Law (8th ed)

PARTIES : Paul Harris (Plaintiff) Dr Michael Bellemore (Defendant)

COUNSEL : Mr T D Kelly / Mr G Watson (Solicitors) (Plaintiff) Mr M Bozic SC / Mr E C Muston (Defendant)

SOLICITORS : T D Kelly & Co (Plaintiff) Blake Dawson (Defendant)

• 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCALLUM J

JUDGMENT 1 HER HONOUR: These are proceedings for medical negligence. The hearing of the proceedings commenced before me on 23 February 2009 and continued over fourteen days. On 13 March 2009 the proceedings were adjourned part heard to 25 May 2009 to enable the plaintiff to call his expert witness on liability, who lives in England, in person and for the taking of further expert evidence. 2 Since the adjournment of the hearing, the parties have raised several procedural issues for the Court's determination (see my judgments given 20 March 2009 (two), 9 April 2009, 15 April 2009 and 28 April 2009). This judgment deals with the following matters: (a) the defendant's opposition to the plaintiff's calling three psychiatrists and a general practitioner to give evidence on behalf of the plaintiff when the court hears the concurrent evidence of experts on psychiatric issues; (b) the plaintiff's application to rely on the reports of Mr Kossmann; (c) the questions to be directed to the parties' experts on liability. The appropriate number of experts on psychiatric issues 3 On the third day of hearing (25 February 2009) I made the following direction: "That any psychiatrist that either party wishes to call give his or her evidence concurrently with all other psychiatrists to be called in the proceedings, and I note that it is contemplated that will occur on 27 May 2009". 4 At a directions hearing on 9 April 2009, Mr Kelly, who appears for the plaintiff, informed the Court (at T911.38) that the plaintiff wished to have the following people participate in that concurrent evidence process: (a) Dr Williams, the plaintiff's treating psychiatrist; (b) Dr Gertler, a medico-legal psychiatrist; (c) Dr Dinnan, also a medico-legal psychiatrist; (d) Dr Tinning, the plaintiff's general practitioner. 5 Mr Bozic, who appears for Dr Bellemore, submitted that, consistently with Practice Note No. SC CL 7, there should not be two medico-legal psychiatrists permitted to take part on behalf of the plaintiff. He submitted that, apart from the usual consideration that it is repetitious and costly to have more than one expert give evidence on one issue, there is a question as to the utility of having Dr Dinnan involved, who has seen the plaintiff only once and purely for the purposes of producing a medico-legal report. Mr Bozic contended that, in the case of that kind of report, the history "in effect becomes the diagnosis" (T912.22). 6 Clause 34 of the Practice Note recognises that the liability aspects of medical negligence claims often involve complex issues as to breach and causation which may require more than one expert from a party to give evidence on a particular issue or issues. Clause 35 states that, as a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to one medical expert in any specialty unless there is a substantial issue as to ongoing disability in which case the number shall be limited to two in any relevant specialty concerning that disability. 7 Mr Bozic, who appears for Dr Bellemore, accepted that there is a substantial issue as to the plaintiff's ongoing psychiatric disability in the present case. He contended, however, that Dr Williams (the treating psychiatrist) serves as one expert for that purpose. He submitted that the plaintiff should otherwise be confined to calling either Dr Gertler or Dr Dinnan, but not both. He opposed the inclusion of Dr Tinning, the general practitioner, on the grounds that he is not a psychiatrist and that in any event he has already given evidence in the proceedings. 8 I agree that it is not appropriate to have Dr Tinning included in the concurrent process. As I have indicated several times during the hearing, I readily accept that the experience and training of general practitioners extends to psychiatric issues. Nonetheless, the particular expertise in the concurrent process proposed in this case is that of qualified psychiatrists, of whom the defendant contends there are already too many. There is no need to include Dr Tinning as well. I also take into account the fact that Dr Tinning has already given evidence in the proceedings (albeit on the basis that his opinion on certain psychiatric issues was excluded). 9 As to whether the plaintiff should be confined to fewer than three psychiatric experts, at the conclusion of argument on this issue I indicated my preliminary view that I should not constrain the plaintiff from calling those witnesses whom he has indicated he wishes to call. I indicated, however, that I wished to reconsider the reports in question before forming a final view. 10 Having given further consideration to the content of the relevant reports, I have come to the conclusion that my preliminary view was wrong. I accept, as submitted by Mr Bozic, that there is a great deal of repetition among the reports. In my view there would be unnecessary costs involved in having all three of the plaintiff's psychiatric witnesses participate in the concurrent process. I also accept that the greater part of the report of Dr Dinnan consists of his account of the history taken by him from the plaintiff. The inclusion of both medico-legal reports would, in my view, entail the vice sought to be eliminated by the Practice Note of having a large number of experts whose reports overlap and are of little assistance to the Court. I am unable to discern any issue which could not properly be addressed if the plaintiff is confined to two psychiatric experts. 11 As has frequently been observed by Mr Kelly, this has already been a complex and expensive hearing. I see no utility to the plaintiff, other than the strength of numbers, in having all three of the plaintiff's psychiatric experts participate in the concurrent process. Accordingly, I propose to direct that the plaintiff elect as to which two of his three psychiatrists he would wish to have participate in the concurrent evidence process.

The reports of Mr Kossmann 12 By Notice of Motion dated 28 April 2009, the plaintiff seeks the following order: "that the plaintiff have leave to rely upon the reports of Mr Thomas Kossmann, orthopaedic surgeon, arising out of his examination of the plaintiff on 14 April 2009 dated respectively 16 April 2009, 17 April 2009 and 28 April 2009." 13 Leave is required because the reports have not been served in accordance with rule 31.28 of the Uniform Civil Procedure Rules 2005. Rule 31.28(1) provides that each party must serve experts' reports in accordance with any order of the Court or, if no such order is in force, in accordance with any relevant practice note or, if no order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. 14 Rule 31.28(3) provides that a report that has not been served in accordance with the rule is not admissible except by leave of the Court or by consent of the parties. The defendant, Dr Bellemore, does not consent to the admission of Mr Kossmann's reports. 15 Pursuant to sub-rule 31.28(4), leave is not to be given under sub-rule (3) unless the Court is satisfied that there are "exceptional circumstances" that warrant the granting of leave. Leave may alternatively be given if the Court is satisfied that the report concerned merely updates an earlier version of a report that has been served in accordance with the rule. However, it was not suggested that Mr Kossmann's reports fall into that category. 16 The reports of Mr Kossmann deal with the plaintiff's current orthopaedic condition. The appropriateness of granting leave to rely on them at this stage of the hearing must be considered against the following history of orders made in the proceedings in respect of evidence on that issue. 17 On 9 December 2008, the plaintiff applied to have the hearing date vacated. That application was opposed by the defendant. I refused the application and made directions calculated to ensure that the proceedings would be ready for hearing on 23 February 2009. The directions I made included an order requiring the plaintiff to file and serve any further experts' reports upon which he wished to rely on or before 30 January 2009. 18 On 13 February 2009, the defendant sought an order under rule 23.4 of the UCPR that the plaintiff submit to examination by Dr Stephen. The basis for that application was that Professor Bates, who had previously been retained to give evidence on behalf of the defendant as to the current orthopaedic condition of the plaintiff, had retired and was accordingly not able to conduct an examination of the plaintiff in order to update his earlier report. 19 The application for an examination order was opposed by the plaintiff. Mr Kelly submitted (at T28.17, 13 February 2009) that, if the examination was merely directed to the current orthopaedic condition of the plaintiff, it should have been organised a long time ago. He submitted that it was wholly unreasonable for the plaintiff's advisors to have to deal with a completely new examination by a doctor who had not been in the case before. He noted that there remained only five working days before the hearing day of an extremely complicated claim. He said that it was simply unreasonable and unjustly prejudicial towards the plaintiff to permit that to occur. 20 For the reasons stated by me that day, I ordered the plaintiff to submit to examination by Dr Stephen. The basis for my decision was, in short, that the requirement was reasonable in light of the retirement of Professor Bates and that attendance at the examination would not itself produce any prejudice to the plaintiff. I indicated that if, in due course, the report provided by Dr Stephen produced such prejudice, Mr Kelly could make any appropriate submission at the relevant time as to whether it should be admitted: see judgment given 13 February 2009 at [24]. 21 According to the evidence on the present application, the plaintiff was examined by Dr Stephen for the first and only time on 20 February 2009. I note that Dr Stephen's report on his examination of the plaintiff is dated 19 February 2009 but, as noted in the plaintiff's evidence, that date appears to be a mistake. In any event, the evidence discloses that, following my making the order for examination on 13 February 2009, the plaintiff's representatives arranged for the plaintiff to see Dr Bernard Zicat on 3 March 2009. 22 The plaintiff's representatives received Dr Zicat's report (dated 3 March 2009) on about 28 March 2009 but did not serve it until 8 April 2009. On 30 March 2009 Mr Kelly wrote to Dr Zicat enclosing a copy of a report of the plaintiff's liability expert, Professor Saleh and a copy of Professor Saleh's "diagram of flexion deformity, procurvartum and posterior translation". The evidence does not say so, but I assume the purpose of that letter was to request a further opinion from Dr Zicat on that issue. 23 According to the affidavit of Grant Watson, Mr Kelly's employed solicitor, he spoke to Dr Zicat after sending him that material and the doctor indicated to him that "this was not really his area". At the hearing of the application to rely on Mr Kossmann's reports, Dr Bellemore tendered Mr Watson's file note of that conversation. It states: "says it's not really his area but he would not place any or much significance on the displacement. Says the angulation is the main concern." 24 Following that conversation, the plaintiff attempted to make arrangements to see three other orthopaedic surgeons. Finally arrangements were made for the plaintiff to see Mr Kossmann on 14 April 2009. His report dated 16 April 2009 was received by Mr Watson on 17 April 2009 and served on the defendant on that date. 25 Before the service of Mr Kossmann's reports, the proposal to take concurrent evidence from the experts on current orthopaedic condition was raised several times in court. At those times, it was not suggested on behalf of Dr Bellemore that it would not be appropriate for the court to grant leave to the plaintiff to rely on the report of Dr Zicat. It is implicit in the position taken by the defendant that the examination of the plaintiff by Dr Stephen after the due date for the plaintiff's expert reports was sufficient reason for the plaintiff to have leave to adduce a new report. The only complaint arises in respect of the reports of Mr Kossmann. Accordingly, although it is correct to say that leave is required under rule 31.28, the real issue in dispute between the parties is not whether the plaintiff should be given leave to adduce evidence from a new expert, but whether leave should be granted in respect of the evidence of Mr Kossmann rather than Dr Zicat. 26 Mr Muston, who argued the application for Dr Bellemore, tendered two earlier reports obtained on behalf of the plaintiff as to his orthopaedic condition, as well as the report of Dr Zicat. Mr Muston submitted, in effect, that I should infer that a forensic decision has been made not to rely on those other reports and that I should reject the proposition that no expert other than Mr Kossmann is willing or able to give evidence on this issue. That may be so, but there is no vice in a forensic decision in itself. The defendant has taken the step of having the plaintiff examined afresh by a new expert to ascertain his current orthopaedic condition. That also was a forensic decision. It does not seem unreasonable, in that circumstance, for the plaintiff's present legal representatives to have sought further evidence on the same issue. 27 As to the content of Mr Kossmann's reports, Mr Muston noted that the conclusion that a step in the plaintiff's femur has caused a "flexion deformity" is a new conclusion. That possibility had been referred to by Mr Pool, the author of one of the reports previously served by the plaintiff, as the plaintiff's belief but Mr Pool did not express his own opinion on it. Mr Muston submitted, accordingly, that the issue has "been around" since December 2001 but has not surfaced until now as an opinion the subject of any expert evidence. 28 I do not think it is appropriate for me to determine the merits of that complaint in considering the present issue. It is to be expected that a report on "current condition" may identify matters not identified in earlier reports. The fact that the supposed flexion deformity has been an issue previously identified by the plaintiff but not embraced by his experts does not necessarily mean that it is without substance. I do not think I should exclude the evidence on that basis alone. 29 Mr Muston relied on two further matters. First, he tendered a report of the Victorian Ombudsman, which contains statements highly critical of Mr Kossmann. Mr Muston did not rely on that report as to the correctness of its contents. He submitted, however, that the existence of the report establishes that it would cause prejudice to the defendant to impose on him, at this late stage, the task of investigating those matters so as to be in a position to cross-examine Mr Kossmann. 30 Secondly, Mr Muston complained that the matters the subject of Mr Kossmann's reports were not put to Dr Bellemore when he was cross-examined about the step in the plaintiff's femur (at T658 and T660). 31 As to the second matter, Mr Kelly correctly observed that Dr Bellemore has not, up to this point, purported to give expert evidence in his own cause. 32 As to the report of the Victorian Ombudsman, I do not accept that the existence of that report produces the prejudice identified. The report is very comprehensive. I do not see that there would be any utility in undertaking separate investigation of the matters it records. In my view, there is sufficient time between now and the resumed hearing for the defendant's legal team to consider its contents and to consider whether the matters raised warrant an attack on Mr Kossmann's ability to give competent, independent evidence as an expert in the proceedings. 33 I have reached the conclusion that I should grant leave to the plaintiff to rely on the reports of Mr Kossmann. The principal consideration in support of that conclusion is that the defendant has not foreshadowed any opposition to Dr Zicat's report. Once it is accepted that the plaintiff should have leave to rely on a new expert as to the plaintiff's current orthopaedic condition, the difference between admitting the report of Dr Zicat and the reports of Mr Kossmann is not, in my view, so great as to warrant my imposing the defendant's choice of expert on the plaintiff.

Questions to be directed to the parties' experts on liability 34 The plaintiff has proposed a draft list of questions for the expert witnesses on liability dated 29 April 2009 (which I have marked in chambers MFI 49). The defendant opposes some of those questions. 35 Questions 2 to 8 and 10 to 12 are directed to evidence given by Dr Bellemore in the proceedings that certain images appearing on x-rays of the plaintiff depict a conical washer. Until 1 April 2009, Dr Bellemore had maintained that he used conical washers on the Illizarov frame fixed to the plaintiff's leg. However, in circumstances set out in my judgment given in respect of the plaintiff's application to amend the pleadings dated 28 April 2009, Dr Bellemore has since conceded that he did not use conical washers on the frame. 36 In those circumstances, the plaintiff seeks to direct questions to the expert witnesses on liability as to the credibility of the evidence previously given by Dr Bellemore on that issue. For example, question 2 asks: "Is it credible in your view that an orthopaedic surgeon of approximately 25 years experience in orthopaedics and over 15 years experience using Illizarov frames could as at 2009 believe that it was the image of a conical washer?" 37 In respect of those questions, Mr Kelly submitted "these questions go to credit which is a critical matter in the issues between the parties in relation to what if any warnings were given to the plaintiff". 38 The concession that the questions go only to credit invokes the application of the exclusionary rule in s 102 of the Evidence Act, which provides that credibility evidence about a witness is not admissible. The only exception to that rule under which the evidence might be admitted is s 108C, which provides: "(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: (a) the person has specialised knowledge based on the person's training, study or experience, and (b) the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge, and (ii) could substantially affect the assessment of the credibility of the witness, and (c) the court gives leave to adduce the evidence." 39 Mr Muston relied on the Explanatory Memorandum to the NSW amending act (set out in Odgers, Uniform Evidence Law (8th ed)) at [1.3.8640] which states: "The new section is intended to enable the admission of expert opinion evidence that is relevant to the fact finding process (for example, to prevent misinterpretation of the behaviour of a witness with an intellectual disability or cognitive impairment, or inappropriate inferences from such behaviour)". 40 Further guidance as to the legislative purpose of s 108C(1) may be gleaned from subs (2) which discloses that one of the areas of specialised knowledge contemplated in the section is knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse. 41 I do not think that s 108C was intended to enable parties in a medical negligence case to call evidence from their expert witnesses on liability as to the credibility of the defendant doctor. The specialised knowledge of the expert liability witnesses in the present case is not in any field that touches on the assessment of the credibility of their colleagues. 42 Further, it would in my view be quite wrong to encourage or permit the expert witnesses to give evidence on those issues. It would tend to compromise their independence as expert witnesses, inviting them to enter the field that should be exclusively reserved for the trial judge of determining the facts in issue. 43 Mr Kelly submitted that the defendant's reliance on s 108C arises from "the erroneous proposition that s 108C(2) is an exclusionary rather than an inclusionary subsection". I think that submission misconceives the defendant's point. Plainly, the particular kind of specialised knowledge referred to in s 108C(2) is not the only kind of specialised knowledge that might establish an exception to the credibility rule. The defendant's contention, which I accept, was that any opinion of the experts on liability in these proceedings as to the credibility of Dr Bellemore's evidence could not be substantially based on their specialised knowledge. 44 The result is that proposed questions 2 to 8 and 10 to 12 would trespass against the exclusionary rule contained in s 102. Accordingly, I do not propose to permit those questions to be included. 45 The next group of questions objected to is questions 16, 17 and 18. The basis of the objection is that those questions are repetitive and seek to elicit the same information as that sought by questions 13, 14 and 15. The first group of questions asks whether the plaintiff was a suitable candidate for the surgery offered to him by the defendant. The second group of questions, which is objected to, asks questions directed to the issue whether an Illizarov surgeon of ordinary skill and competence as at 1996 would have regarded the plaintiff as a suitable candidate. I accept that there is a measure of overlap between those questions but I do not think that it is such as to pose a difficulty for the experts in the present case and I propose to permit those questions. 46 The next group of questions objected to goes to the risks and warnings which ought to have been given to the plaintiff. Question 21 asks: "What steps or procedures as far as you are aware were available as at 1996 in Australia to minimise or guard against any of the potential dangers and/or risks in such surgery?"

I accept, as submitted by Mr Muston, that that question is not relevant to any particular of negligence. I do not propose to permit question 21 to be included. 47 Questions 22 and 23 are objected to because they involve "the ultimate question", that is, they require the experts to proffer an opinion as to the application of the legal test of material risk defined in Rogers v Whittaker (1992) 175 CLR 490. I do not think that is a sufficient reason to reject those questions. The prohibition against asking an expert the ultimate issue has, of course, been abolished: s 80 of the Evidence Act. I am not, of course, bound by the answers of the experts to those questions but they are admissible and, in my view, may be of assistance to the Court. I propose to allow questions 22 and 23. 48 Question 24 asks: "As at 1996 what record if any in your view should have been made of such warnings or consents as referred to in 22 above in the surgeon's patient records, the request for surgical operation and treatment form signed by the patient and the surgeon's operation notes?"

I accept, as submitted by Mr Muston, that that question is also irrelevant to any particular of negligence. I do not propose to permit question 24 to be included. 49 Question 29 asks: "As at 1996 was an 8cm femur lengthening on an adult patient high risk surgery? If so, why and what were the risks?"

I accept, as submitted by Muston, that that question seeks the same information as is sought by question 20 and should not be included. 50 Question A40 had been objected to as duplicating question 40A(i) but the latter question has now been omitted by the plaintiff. In my view, question A40 should be permitted, including the additional question A40(c). 51 Questions 40 and 40A go to the issue as to what physiotherapy support should have been provided to the plaintiff throughout the limb lengthening process. In my judgment given 28 April 2009 in respect of the plaintiff's application to amend his pleadings, I rejected a proposed amendment to plead a new particular of negligence alleging a failure to monitor the plaintiff's physiotherapy treatment. The basis on which I rejected that amendment was that it was a new allegation the inclusion of which would plainly cause unfair prejudice to Dr Bellemore. 52 Mr Kelly submitted that the issue of physiotherapy has already been the subject of evidence from the plaintiff, the defendant and the physiotherapist, Ms Crane. That does not, however, warrant an expansion of the issues properly raised on the pleadings. I do not propose to permit the inclusion of questions 40 and 40A. 53 Questions 43 and 44 were problematic in that they required the experts to answer a question as to what the defendant intended to do when he treated the plaintiff. Mr Kelly accepted that the problem could be overcome by amending question 43 so as to ask the experts to make an assumption as to what was intended and to answer question 44 accordingly. With that change, I propose to permit those questions. 54 Questions 48 to 66 are directed to the manner in which the second osteotomy was performed by the defendant on 5 May 1997. As noted in my judgment on the plaintiff's amendment application given 28 April 2009, the defendant admits that the failure to use conical washers or hinges on the plaintiff's Illizarov frame constituted a breach of his duty of care as a result of which the second osteotomy on 5 May 1997 was required. The defendant further admits that, as a result of the second osteotomy, the plaintiff suffered damage to his femoral artery and the posterior translation (or step) in his right femur. 55 In the face of those admissions, it has been difficult to understand why Mr Kelly insists on the inclusion of questions 48 to 66. Mr Kelly stated that he does not want to be met with an argument that the plaintiff requested the second osteotomy and that the defendant advised against it but that the plaintiff nonetheless consented to have it against that warning. As readily conceded by Mr Muston, it would scarcely be open to the defendant to deny responsibility for the second osteotomy in the face of the clear admissions he has now made. In those circumstances, notwithstanding Mr Kelly's concerns, I am satisfied that there is no need for the inclusion of any of the proposed questions as to the second osteotomy and I propose to reject questions 48 to 66. 56 Questions 67 to 69 were added after the defendant provided his written submissions on the basis of which I have decided these issues. Further, they appear to raise an issue addressed in Mr Kossmann's reports. I will hear the parties as to the inclusion of those questions in light of my ruling on Mr Kossmann's reports.

(1) I note that the questions for the psychiatric experts in the proceedings are those identified in attachment "B" to the directions of the Court made 27 April 2009.

(2) Pursuant to rule 31.20(2)(e) of the UCPR, I direct that the number of expert witnesses who may be called by each party to give evidence on those questions be limited to two.

(3) Pursuant to rule 31.28(3) of the UCPR, I grant leave to the plaintiff to rely on the reports of Mr Kossmann dated 16 April 2009, 17 April 2009 and 28 April 2009.

(4) In respect of the plaintiff's draft questions for expert witnesses on liability dated 29 April 2009 (MFI 49) I reject questions 2 to 8, 10 to 12, 21, 24, 29, 40, 40A and 48 to 66.

(5) I allow questions 16, 17, 18, 22, 23, A40 in MFI 49 including the additional question A40(c) and 43 to 44 (with the amendment referred to at [53] of these reasons and marked on MFI 49).

(6) I will hear the parties as to the inclusion of questions 67 to 69 in MFI 49 in light of my ruling on Mr Kossmann's reports. **********

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