Harris v Bellemore

Questions remitted by the Court of Appeal 17In light of my conclusion as to the extent of my authority pursuant to the remitter, it is important for the purpose of the present application to consider the scope of the four questions remitted. 18Some background should be explained. Mr Harris consulted Dr Bellemore with a view to having both of his legs lengthened. His aim was to eliminate an existing discrepancy between the lengths of his legs and also to make himself taller. The process of limb-lengthening treatment involves fitting a frame to the leg, dissecting the bone and using the frame to pull the surgical fracture apart gradually, prompting the body to generate new bone to fill the gap. The dissection of the bone is called an osteotomy. The process of pulling the two parts of the bone apart is called distraction. 19One potential complication of the distraction process is that, as the length of the bone is increased, the surrounding muscles come under tension, which can pull the limb out of straight alignment. That risk materialised in the case of Mr Harris. During his treatment, he developed what is known as a varus deformity in his right leg, meaning that the leg stood out of normal alignment as viewed from the front (like a pendulum). The varus deformity could have been corrected during the distraction process if Dr Bellemore had fitted hinges to the frame. Dr Bellemore admitted that his failure to fit hinges (or alternatively conical washers) was a breach of his duty of care. He further admitted that, as a result of his failure to fit hinges, it was necessary for him to perform a second osteotomy to correct the varus deformity. The second osteotomy was attended by a very unfortunate complication (severance of an artery), resulting in the original award of damages by me. 20During the distraction process, Mr Harris also developed what is known as a procurvatum condition, meaning that the bone developed a curvature as viewed from the side (like a bow). In the proceedings at first instance, I held that Mr Harris had not pleaded any claim of negligent failure to correct the procurvatum condition: at [267] to [274]. The Court of Appeal held (at [92]) that I was in error in rejecting the procurvatum claim on that basis. As already noted, the Court held that the pleading sufficiently conveyed to Dr Bellemore that Mr Harris was asserting that if "the relevant hinges" had been used in the distraction process he would not have had the procurvatum condition. 21The questions remitted to me accordingly arise from the contention that the procurvatum condition could also have been corrected during the distraction process by the use of hinges on the frame (that is, that the procurvatum condition could have been corrected at the same time as the varus deformity). That is a contention as to cause and effect, but it does not address the question of breach of duty. As already noted, there 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. As I read the judgment, the Court of Appeal concluded that Dr Bellemore had admitted negligence in that respect. The formulation of the questions remitted to me was evidently informed by that conclusion. 22I should record that I did not understand Dr Bellemore's admissions in that way during the course of the trial. The admission was made by letter dated 7 April 2009. The final form of the pleading was filed after that date (second further amended statement of claim filed 1 May 2009). 23In the letter dated 7 April 2009, Dr Bellemore admitted that: (a) the failure to use conical washers or hinges on the Ilizarov frame fitted to the plaintiff constituted a breach of his duty of care; and (b) as a result of this breach of duty, the second osteotomy of 5 May 1997 was required. 24In a further letter dated 14 April 2009, Dr Bellemore made admissions as to the damage suffered by Mr Harris as a result of the second osteotomy. 25It may be acknowledged that the admissions as to breach of duty made in the first letter are not confined in terms to the varus deformity. However, at the time and in the context in which the admissions were made, I understood the letter to refer exclusively and unequivocally to the failure to use hinges in order to correct the varus deformity. I did not understand Dr Bellemore to have admitted negligence in also failing to use hinges to address the developing procurvatum. As already noted, the form of the pleading which the Court of Appeal held adequately raised the procurvatum claim was not filed until after those admissions were made. 26Accordingly, had I ultimately accepted that Mr Harris's pleading properly raised an issue as to whether Dr Bellemore was negligent in failing to identify and correct the procurvatum deformity, I would have proceeded to consider whether such negligence was established. In light of my understanding of the admission as being limited to what I understood had been pleaded previously, that would have entailed my determining separately whether a reasonably competent Ilizarov surgeon practising in 1996 presented with Mr Harris should have included additional hinges in order to correct the procurvatum condition. As I understood the expert evidence at the trial, the appropriateness of correcting the procurvatum condition with hinges during the distraction process (as opposed to addressing the condition by osteotomy at a later point in time) turned on the timing, placement and extent of its development. Further, had it been appropriate to correct the condition with hinges, that would have involved the use of different hinges from those required to address the varus deformity and there was little evidence on that issue at the hearing. Accordingly, had it been necessary for me to determine the question of negligence, there may have been an occasion for receiving further evidence as to the development of the procurvatum condition. 27However, the Court of Appeal has not remitted the question of negligence to me. The premise of the Court's decision is that Dr Bellemore's admission made in the letter dated 7 April 2009 extends to an admission of negligence in respect of the procurvatum claim later pleaded in the second further amended statement of claim. The claim as evidently understood by the Court of Appeal alleged that Dr Bellemore was negligent in failing to use two sets of hinges on the Ilizarov frame: the hinges required to address the varus deformity and, separately, the hinges required to address the procurvatum condition. The Court has evidently taken Dr Bellemore's admission to foreclose the issue whether it was a breach of his duty of care not to seek to correct the procurvatum condition with hinges during the distraction process: see particularly at [93] of the judgment. The position is put beyond doubt by the statement at [94] that the questions remitted to me are "the only issues in respect of the claim not yet resolved in favour of [Mr Harris]". 28In reaching that conclusion, the Court noted Dr Bellemore's contention that his admission related only to hinges designed to correct the varus deformity: at [98]. The Court rejected that contention, saying at [99]: This is not an accurate description of the claim then being made. It was clear at the time of the admission that the appellant's claim related not only to his varus condition but also to his procurvatum condition: see the appellant's opening at [17] above, the respondent's cross-examination at [20] above, Professor Saleh's evidence at [22] - [23] above and Mr Simonis' evidence at [25] above. 29The Court noted (at [70] and again at [89]) that, in my judgment determining Mr Harris's application to file the second further amended statement of claim, I rejected an argument that part of the proposed amendment should be disallowed on the basis that it went beyond the admissions contained in the letter dated 14 April 2009 (as to the damage suffered by Mr Harris as a result of the second osteotomy): see Harris v Bellemore (Supreme Court of New South Wales, McCallum J, unreported, 28 April 2009) at pp 6 to 7. However, that judgment was not concerned with the issue whether the earlier admission made on 7 April 2009 (as to breach of duty) amounted to an admission of breach of duty in respect of the procurvatum condition. 30In any event, the Court of Appeal has clearly held that Dr Bellemore's admission made on 7 April 2009 did extend to admitting a breach of duty of care in failing to use hinges on the Ilizarov frame to correct Mr Harris's procurvatum condition: at [98] to [101]. It is not open to me to gainsay that conclusion. My authority in respect of the new trial is confined to determining the questions remitted, which confine attention to the issues of causation and damage. 31As to the question of damage, the Court of Appeal expressly held that it was not open to Mr Harris to contend that his procurvatum condition was one of the causes of his psychiatric condition: at [143]. That issue is considered further below.

Order sought 32The motion seeks an order granting leave to call further evidence as to: (a) the plaintiff's procurvatum condition; (b) the effect of the plaintiff's procurvatum condition; (i) on his physical condition generally; and (ii) on his psychiatric condition; (c) on the cost of the various needs of the plaintiff arising from his procurvatum condition including the psychiatric sequelae if any of that condition; (d) on the effect upon the plaintiff's economic capacity of his procurvatum condition and its sequelae and the disabilities flowing from the condition and its sequelae including his psychiatric sequelae, if any, flowing from that condition. 33In support of the application, Mr Toomey read the affidavit of Mr Grant Watson sworn 30 April 2012. That affidavit annexes three expert reports. Two are from orthopaedic surgeons who gave evidence at the trial, Dr Simonis and Professor Saleh. The third is from a psychiatrist, Dr Dinnen. However, it was made clear by Mr Toomey that he does not seek a preliminary ruling as to the admissibility of that material in particular or, indeed, an order that the plaintiff have leave to adduce that material. It is plainly not appropriate to determine issues as to admissibility at this stage. 34Mr Toomey submitted that, as the relief granted by the Court of Appeal is in the nature of "a further hearing", that process is not controlled by "the discretionary matters concerning the finality of litigation". He noted that my power to receive further evidence is unconstrained by any requirement to be satisfied as to the existence of special circumstances (by contrast with the power of the Court of Appeal under s 106(2) of the Supreme Court Act). 35It may be preferable to refer to the process for determining the questions remitted as a new trial (in the language of the Supreme Court Act and rule 51.53) rather than a further hearing. In any event, neither term informs the question whether the parties should be allowed to call evidence on any of the questions remitted. In the absence of any order by the Court of Appeal under r 51.53(5), my discretion to allow evidence to be called at the new trial must be exercised having regard to all of the relevant circumstances and in accordance with the mandatory considerations identified in ss 56 to 60 of the Civil Procedure Act 2005. 36Whilst the considerations identified by Mr Toomey are plainly relevant, it is important also to have regard to the circumstances in which the questions have been remitted for new trial. As submitted by Mr Donaldson SC, who appears with Mr Muston for Dr Bellemore, the decision of the Court of Appeal holds that the procurvatum claim was adequately pleaded, opened and run, but not adjudicated upon. On that basis Mr Donaldson submitted that, prima facie, Mr Harris should be bound by the forensic decisions made during the course of the trial and that, subject to one qualification, any point that remains undecided should be determined on the basis of the evidence called at the trial. The qualification was that Mr Donaldson accepted it would be difficult to resist the calling of fresh evidence to the extent that it genuinely updates the medical evidence given at the trial as to Mr Harris's physical condition, especially in light of the time that has passed since the trial. 37Mr Donaldson noted that the reports annexed to Mr Watson's affidavit address the impact of the procurvatum condition on Mr Harris's biomechanical function. He submitted that such evidence does not fall into the category of fresh evidence updating the plaintiff's medical condition since the first hearing before me, but is rather further evidence that could have been called at the trial. Mr Donaldson submitted that the plaintiff should not have leave to adduce such evidence in the absence of any explanation as to why it was not called at first instance. 38In my view, there is force in Mr Donaldson's submissions. I accept that I have a discretion to allow the plaintiff to call further evidence as to his procurvatum condition, including evidence that could have been called at the trial. That flows from the fact that the Court of Appeal has exercised its power to order a new trial (albeit one limited to specified questions) and not made any order under r 51.53(5) regulating the conduct of the new trial. 39However, the discretion must be exercised in accordance with the dictates of justice. In all the circumstances, I do not think Mr Harris should be allowed to expand upon the evidence that was or could have been adduced at the trial as to the underlying procurvatum condition. As noted by Mr Donaldson, it is not suggested that the procurvatum condition (that is, the degree of bowing in the bone) has changed since the hearing before me. To the extent that its impact on the plaintiff's physical condition has decreased, increased or remained the same, the parties should have leave to call evidence as to those matters. However, as the Court of Appeal has held, the condition itself was an issue in the trial and was addressed in the evidence. Mr Toomey did not seek to identify any deficiency in the evidence already lead or suggest that there would be any injustice if further evidence as to the procurvatum condition were not allowed. 40Conversely, there are compelling reasons in this case for containing the evidence. The litigation does not luxuriate in the accolade of being a model of the furtherance of the overriding purpose stated in s 56 of the Civil Procedure Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. The proceedings have already suffered considerable delay and must have entailed substantial costs. Those are considerations which properly inform the exercise of my discretion: ss 59 and 60 of the Act. In my view, it would be contrary to the dictates of justice to allow the plaintiff to revisit earlier forensic decisions at this stage. 41It should be acknowledged, however, that there may be some measure of overlap between evidence which could have been called at the trial and evidence properly regarded as updating evidence. As already noted, this judgment does not purport to pre-empt rulings as to admissibility. 42For those reasons, I do not consider it appropriate to make orders in the terms sought in the motion. I would refuse leave to either party to call evidence at the trial on the questions remitted to me except updating evidence as to any change since the hearing before me in the plaintiff's physical condition attributable to the procurvatum; any fresh evidence as to the cost of his needs arising from such change and any fresh evidence as to the effect of such change on his economic capacity. 43To the extent that the application seeks leave to call evidence going to psychiatric issues, it must be rejected. On this issue, I do not think I have any discretion. As submitted by Mr Donaldson, such evidence is quite outside the terms of the questions remitted to me. It is plain that the Court of Appeal intended to exclude from the remitter any issue as to psychiatric harm and, accordingly, the determination of any issue concerning such harm is beyond my authority. 44Mr Toomey acknowledged that, in order to pursue the claim for psychiatric damage resulting from the failure to correct the procurvatum condition, it would be necessary to amend the second further amended statement of claim so as to omit paragraphs 29A and 29B. Those paragraphs provide: 29A All of the plaintiff's psychological and/or psychiatric condition (insofar as caused or contributed to by the surgery and treatment by the defendant over the period November 1996 to July 1997 inclusive) has been caused by the surgery of 5 May 1997 and the effects upon the plaintiff of that surgery. 29B None of the prior shocks or complications or mishaps in the plaintiff's prior surgery or treatment between November 1996 and 4 May 1997 or the course of that surgery would in themselves taken singly or together have produced any psychological or psychiatric injury to the plaintiff had the injuries sustained by him in the surgery of 5 May1997 not occurred. 45A number of difficulties arise from the acknowledged need to amend. First, noting the way in which Mr Harris's claim was put at first instance, the Court of Appeal has in my view held in the clearest terms that any claim of psychiatric damage flowing from the procurvatum condition is foreclosed. Secondly, I frankly doubt whether I have authority having regard to the terms of the remitter to consider allowing such an amendment. Thirdly, even if I had authority to embark on a consideration of that issue, I would not exercise my power to allow the amendment. First, to do so would, in substance, allow the withdrawal of an admission. Mr Toomey resisted that characterisation of the proposed amendment. It perhaps not an admission in form, but that is the effect or at least a logical corollary of the pleading. Mr Harris sought leave, after Dr Bellemore made his limited admission of liability, to amend the pleading specifically to put all of his psychiatric harm in the admitted basket of damage. Contrary to Mr Toomey's submission, that contention has been adjudicated upon. 46Mr Toomey submitted that there could be no prejudice in allowing the plaintiff to withdraw those paragraphs of the pleading, since they were denied. With great respect to Mr Toomey, who has valiantly taken on the guard of Mr Harris's claim with all of its inherited complexity, that submission wholly understates the implications of the amendment now sought. Dr Bellemore defended a claim brought on a premise that is entirely inconsistent with the contention now sought to be made by the foreshadowed amendment. I think it would be extremely unfair to allow that to occur. 47Accordingly, even if it were within my authority to allow an amendment to the pleading so as to abandon paragraphs 29A and 29B (which I do not accept), I would not exercise my discretion to allow that amendment. 48For those reasons, to the extent that the application seeks leave to call further evidence as to Mr Harris's psychiatric condition, the cost of any needs arising from psychiatric sequelae arising from the procurvatum condition or the effect on his economic capacity of any psychiatric sequelae of the procurvatum condition, it must in my view be rejected. 49It follows that the plaintiff's motion dated 24 April 2012 should be dismissed. However, as indicated at [42] above, leave will not be refused to either party to call updating evidence as to any change since the hearing before me in the plaintiff's physical condition attributable to the procurvatum; fresh evidence as to the cost of any changed needs arising from such change or fresh evidence as to the effect of such change on his economic capacity.

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