Harris v Bellemore

Judgment 1HER HONOUR: Paul Harris brought proceedings for medical negligence against an orthopaedic surgeon, Michael Bellemore. The proceedings were determined by me at first instance: Harris v Bellemore [2010] NSWSC 176. I allowed part but not all of Mr Harris's claim. Following an appeal brought by Mr Harris, the Court of Appeal has remitted the proceedings to me for a new trial limited to four specific questions articulated by the Court: Harris v Bellemore [2011] NSWCA 196 at [94]. 2In remitting the proceedings, the Court of Appeal stated that it would be for me to decide in my discretion whether the parties should be allowed to call evidence on any of the questions remitted: at [97]. The plaintiff now seeks leave to call further evidence as to a number of matters. This judgment determines that application.

Circumstances in which the application is brought 3Mr Harris's claim arose out of limb-lengthening treatment carried out on him by Dr Bellemore. Mr Harris alleged a series of breaches of duty of care arising from that treatment. During the course of the hearing Dr Bellemore admitted breach of duty in one limited respect. The admission related, relevantly, to his failure to use hinges on the frame fitted to Mr Harris's leg during the treatment. I held that Mr Harris was entitled to an award of damages only in respect of the admitted breach. I otherwise rejected Mr Harris's claims: at [176]. In a separate judgment, I determined a small number of outstanding issues as to the calculation of damages: Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010). On 24 June 2010, judgment was entered for Mr Harris in the amount of $652,892.95. I dealt with costs in a further separate judgment: Harris v Bellemore (No 3) (Supreme Court of New South Wales, McCallum J, unreported, 13 August 2010). 4Mr Harris's appeal against my decision was allowed in part. The Court held that I was wrong to have rejected a discrete aspect of the claim (referred to as the procurvatum claim) on the basis that it had not been pleaded: at [92] per Macfarlan JA; Beazley and McColl JJA agreeing at [1] and [2] respectively. Macfarlan JA considered (at [85]) that, despite certain criticisms of the pleading made by his Honour, the pleading: "sufficiently conveyed to [Dr Bellemore] that [Mr Harris] was asserting the proposition, which was clearly arguable upon the basis of the evidence he called, that if the relevant hinges had been used in the distraction process he would not have had the procurvatum condition." 5There was a contest in the appeal as to whether Dr Bellemore's limited admission of liability extended to admitting negligence in failing to use hinges to correct the procurvatum condition. It will be necessary to return to that issue. 6Apart from the ground of appeal relating to the procurvatum claim, Mr Harris had relied upon two further grounds of appeal. They related to my rejection of an expert report and my rejection of Mr Harris's claim that his debilitating psychiatric condition was caused by Dr Bellemore's negligence. The Court of Appeal rejected those grounds: at [112] and [144] respectively. 7The Court disposed of the appeal by allowing the appeal in part; setting aside three of my orders as to costs (made on 13 August 2010 as set out in Harris v Bellemore (No 3)) and remitting the proceedings to me. The terms of the remitter (order 3) are as follows: Remit the proceedings to the primary judge 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: (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? 8Mr Harris sought special leave to appeal to the High Court against the dismissal of his two unsuccessful grounds and against the order remitting the proceedings to me. That application was dismissed by the High Court on 9 December 2011: Harris v Bellemore [2011] HCA Trans 346. 9The present application was made by notice of motion filed 24 April 2012. The motion was listed before me for hearing on 26 July 2012. On that date, Mr Harris sought an order that I refer the matter for hearing by another judge of the Court. I determined that application on 3 August 2012: see Harris v Bellemore (No 4) [2012] NSWSC 878. I concluded that I was bound by the decision of the Court of Appeal to determine the four outstanding questions concerning the procurvatum claim: at [31]. 10Mr Harris sought leave to appeal against that decision. The application for leave was dismissed by the Court of Appeal on 8 February 2013: see Harris v Bellemore (No 2) [2013] NSWCA 17. 11The proceedings were then re-listed before me again on 21 May 2013. It may be important to record what happened on that occasion, for future reference. As already noted, the judgment in favour of Mr Harris was entered on 24 June 2010 (order 3 made that date). The Court of Appeal did not set aside that judgment. The only orders of mine set aside by the Court were orders 3, 4 and 5 made on 13 August 2010. Those were orders as to costs. 12Mr Toomey QC, who now appears with Mr Romaniuk for the plaintiff, considered that the Court of Appeal must rather have intended to set aside the judgment and that, to the extent that the orders of the Court referred only to orders as to costs, that must have been a "slip". Before moving on the notice of motion for leave to call further evidence, Mr Toomey accordingly sought a further adjournment so as to consider whether it was necessary for Mr Harris to approach the Court of Appeal to correct the perceived slip. 13After granting the adjournment, I sought further assistance from the parties as to whether I should seek such clarification in any event. The Court remitted specified questions which include questions of fact. That was presumably an exercise of the Court's powers under r 51.53 of the Uniform Civil Procedure Rules to order a new trial and to limit the questions to be determined in that trial as allowed under r 51.53(2) or (3). Sections 106 and 107 of the Supreme Court Act 1970 appear to contemplate that an order for a new trial will be accompanied by an order setting aside the judgment appealed from. The issue as to which I sought further assistance was whether, so long as the judgment entered on 24 June 2010 stands, the parties' rights are merged in that judgment, leaving no controversy to be quelled. 14Both the plaintiff and the defendant provided a response to the effect that, upon reflection, they saw no need for the matter to be clarified by the Court of Appeal. On behalf of Dr Bellemore, it was submitted that the absence of an order setting aside the judgment entered for the plaintiff in the sum of $652,892.95 does not produce the consequence that there is no controversy between the parties, since the effect of the orders of the Court of Appeal is that "a controversy of the breadth defined by the order for a limited rehearing remains". Dr Bellemore submitted that the plaintiff's other rights "have merged in and remain fixed by the order for judgment, but the effect of the Court of Appeal decision is that not all rights have merged in the order for judgment". Accordingly, he submitted that the order for judgment does not create any obstacle to the determination of the questions posed by the Court of Appeal. 15Since neither party sought to have the matter clarified by the Court of Appeal, I did not wish to visit further cost or delay on the parties by seeking that course myself. When the proceedings came back before me on 7 June 2013, I indicated that I was content to proceed on the basis that, if there is an award of further damages to the plaintiff, I would have power under r 36.15 of the Uniform Civil Procedure Rules to set aside the judgment entered on 24 June 2010 under r 36.15(2) by consent (which the defendant indicated would be given). Judgment in the higher sum could then be entered in place of the existing judgment. 16That interesting excursion has identified two important considerations. First, the parties have persuaded me that it is not inappropriate for me to proceed on the premise that the orders of the Court of Appeal confer authority on me to determine the four questions remitted by the Court notwithstanding the fact that the judgment entered at first instance has not been set aside. Secondly, in my view, the authority conferred in terms by order 3 made by the Court of Appeal is the only authority I have: cf R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45 at [27] per Allsop P and Johnson J; Spigelman CJ and Kirby and Howie JJ agreeing at [1], [71] and [72] respectively. However, in case that is wrong, this judgment also addresses the plaintiff's application on the alternative premise.