Harris v Bellemore

Circumstances in which the application is made 4In the appeal, the plaintiff contended that the judgment entered in his favour was inadequate as a result of my having erred as follows (see appeal judgment at [14]): (a) in concluding that the plaintiff had not pleaded a claim for damages relating to his procurvatum deformity, with the result that the plaintiff was not entitled to damages related to that deformity, and finding that in any event the plaintiff's procurvatum deformity did "not appear to have any functional significance for [the plaintiff]" (Judgment [267]); (b) in rejecting the appellant's tender of a report dated 25 May 2009 of Mr Simonis, an orthopaedic surgeon, concerning the appellant's current condition; and (c) in rejecting the appellant's claim for damages based upon his alleged psychiatric condition. 5The Court of Appeal rejected grounds (b) and (c): at [112] and [144] respectively per Macfarlan JA; Beazley and McColl JJA agreeing at [1] and [2] respectively. 6Ground (a) raised two issues, namely, the correctness of my conclusion as to whether the procurvatum claim had been pleaded and the correctness of an alleged finding as to the merits of that claim. The Court of Appeal dealt with the second issue first: at [71]-[82] of the appeal judgment. After considering my discussion of the significance of the procurvatum, Macfarlan JA said (at [82]): [82]In these circumstances my view is that either the primary judge should be regarded as not having given reasons for concluding that the appellant's procurvatum is of no functional significance or, if her Honour's reasons should be inferred to be those given in relation to the appellant's posterior displacement condition, those reasons do not support the conclusion that the appellant's procurvatum is of no functional significance. As determination of this issue involves the interpretation of expert evidence adduced before her Honour and the resolution of apparent conflicts in that evidence, this Court is not in my view in a position to resolve the issue of whether the appellant's procurvatum is of any functional significance and, unless there are other reasons not to do so (such as the pleading point to which I will turn), the issue should be remitted to the primary judge for resolution. 7The underlined sentence determined an issue raised in argument before the Court of Appeal as to the appropriate orders in the event that the appeal was allowed. The defendant had submitted that, if minded to accept ground (a), the Court of Appeal should itself determine the procurvatum issue. That the Court of Appeal had power to do so if it saw fit was not in dispute: cf s 75A(10) of the Supreme Court Act 1970. However, the plaintiff opposed that course. Further, whilst opposing that course, the plaintiff did not raise any issue as to whether the matter should be remitted to me, as opposed to being remitted to this Division for hearing by another judge. Mr Toomey of Queen's Counsel, who now appears for the plaintiff with Mr Romaniuk, explained that the question was never asked. He informed me that, had the issue been raised, the plaintiff would have opposed the remitter to me and would have sought an order remitting the matter for hearing by a judge of the Division other than me. 8The Court of Appeal considered that, "as determination of [the procurvatum] issue involves the interpretation of expert evidence adduced before her Honour and the resolution of apparent conflicts in that evidence", it was not in a position to resolve the issue of whether the appellant's procurvatum is of any functional significance. On that basis, the Court held that, subject to the pleading point, the procurvatum issue should be remitted to be determined by me: at [82]; reiterated at [91]. It may be noted that the Court's reason for declining to decide the procurvatum issues itself would apply equally to another judge of this Division. 9Turning to the pleading point, the Court of Appeal held that I was wrong to reject the procurvatum claim on the basis that it had not been pleaded. The Court held that, despite some aspects of the pleading that warranted criticism, the pleading sufficiently conveyed the claim in question (at [85], [92]). Macfarlan JA continued (at [93] to [94]): [93]It cannot in my view be said that on the evidence before her Honour the claim was in any event bound to fail. The respondent admitted that he was negligent in not using hinges and there is arguably a basis in the evidence for concluding that the procurvatum condition would have been avoided or corrected if the respondent had used the hinges. Further, as I have indicated above, there is arguably a basis in the evidence for a finding that the appellant's procurvatum condition constitutes a serious disability. The primary judge's contrary conclusion, that the procurvatum did not appear "to have any functional significance for Mr Harris" (see [75] above) was not supported by any reasons that her Honour gave. [94]In these circumstances the procurvatum claim must be remitted to the primary judge for determination. This should be upon the basis that the only issues in respect of the claim not yet resolved in favour of the appellant are the following: (a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames? (b)Does the appellant's procurvatum condition constitute a disability of any significance? (c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy? (d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant? 10The orders of the Court of Appeal (at [147]) remitted the proceedings to me "to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate" (emphasis added). The "following questions" were those set out at [94] of the judgment, reproduced above. 11The plaintiff applied to the High Court for special leave to appeal against the decision of the Court of Appeal. That application was determined on 9 December 2011: Harris v Bellemore [2011] HCA Trans 346. The application for special leave included a challenge to the order of the Court of Appeal remitting the matter to me. In refusing special leave, the High Court said: The applicant seeks special leave to appeal against the order of the Court of Appeal which remitted the matter to the primary judge to determine whether the applicant's procurvatum condition could have been corrected by the respondent, whether it constituted a disability of any significance and whether it was caused by the respondent's treatment of the applicant. The remitter extended to a requirement that the primary judge consider what further damages, if any, should be awarded to the applicant. The applicant complained that the primary judge had made findings in relation to the procurvatum condition which amounted to a pre-judgment on aspects of the questions remitted to her. However, having regard to the primary judge's conclusion that the procurvatum claim was not before her, such observations as she made did not, in our opinion, preclude her from coming from (sic) conclusions favourable to the applicant on remitter.

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