I hope this is of some assistance.
19 The additional affidavit annexed a report from a physiotherapist which contained the following material concerning warnings about the use of crutches:
Warnings are given to stop the patient from leaning through their axillas both when they are walking and standing still with crutches, again, owing to the potential occlusion of nerves and arteries in the axilla. The weight-bearing function of the crutches is through the hands and the upper part of the crutch is for stability.
20 As noted earlier, the statement in Professor Murrell's report that a doctor who prescribes crutches should make arrangements for the patient to be instructed regarding their use was admitted without objection, and indeed without any application made under s.136 of the Evidence Act that the use of this material be limited in any way. In the context of the report as a whole, it is my opinion that an inference was plainly open that this statement by Professor Murrell related to the situation at the time the appellant's crutches were prescribed, and did not merely relate to the future, as suggested by the primary judge.
21 In my opinion, the inference was open that the statement was based on concern not merely for the patient's comfort, but also for the patient's health because of risk of physical injury of some kind, and also that such injury that could be occasioned was of the same general kind as that suffered by the appellant. The last proposition has some support from the case of Youkhana v Western Sydney Area Health Service, Court of Appeal, 10 October 1995, which confirms that a narrow interpretation should not be given to the kind of injury in this context.
22 The respondent put on its own expert medical evidence which did not touch any of those points but merely confirmed that there had been no previous association of misuse of crutches with the particular injury suffered in this case and expressed the view that another cause was more probable.
23 In those circumstances, in my opinion, if the respondent wished to take the point that Professor Murrell's report did not constitute some evidence of relevant duty, some evidence of foreseeability of some physical injury, and some evidence that such foreseeable injury was sufficiently of the same type as the injury suffered by the appellant, the respondent should have at least taken some objection to the report, and particularly the passage that I have indicated, or else sought some limitation of it under s.136 or perhaps cross-examined Professor Murrell. Since these things were not done, in my opinion the primary judge should not have read Professor Murrell's report in a narrow way against the appellant and should, in my opinion, have found it provided sufficient evidence of an arguable case of a duty of care for the purposes of this application.
24 Mr Higgs SC for the respondent submitted that, even if the material from Professor Murrell provided sufficient evidence of duty of care, nevertheless the appellant had not made out a case that the injury she suffered was of a foreseeable kind, so that her case was deficient in that the damages she was claiming were too remote. He submitted that, even if an inference could possibly have been drawn from the material that the injury suffered by the appellant was sufficiently of the same kind as a foreseeable injury, it was well within the scope of the primary judge's authority to not draw that inference.
25 In my opinion, the state of the evidence being as I have indicated, even assuming that it is not necessarily sufficient that the foreseeable injury be physical injury of some kind or another, the material was such as to make it quite inappropriate for the primary judge to find against the appellant on the question of foreseeability in an application of this kind. A finding that the appellant's injury was different in kind from a foreseeable injury would require at least a very careful investigation of the nature both of the appellant's injury and the foreseeable injury, an exercise which, in my opinion, would be inappropriate in an application of this kind.
26 As regards the application to lead further evidence, because of the views I have expressed it is not necessary for me to rule finally on that application. However, I would express the view that, if I had considered the additional evidence necessary, I would have permitted the evidence to be led. This was a case where prior to the hearing below there had been no notification either through the service of medical or other evidence or in any other way that the particular point on which the respondent succeeded below was to be taken.
27 Mr Higgs submitted that two of the requirements for the admission of fresh evidence were not satisfied. He submitted that it was not shown that the evidence could not have been obtained for the hearing below with reasonable diligence and it was not shown that the evidence was such that there was a high probability of a different result.
28 In my opinion, the question of whether evidence could have been obtained with reasonable diligence is a question that has to be considered in the light of the issues that a party would reasonably expect to be contested at the hearing in question. In my opinion, in the circumstances which I have outlined, it would not reasonably have been expected by the appellant that this particular issue would have been contested in such a way as to require additional evidence.
29 As regards the second point taken by Mr Higgs, this has to be considered on the assumption that, contrary to the view I have expressed, the existing evidence was not sufficient. Mr Higgs submitted that the fresh evidence showed only the foreseeability of a temporary injury due to the crushing of a nerve, which was vastly different from the skeletal injury actually suffered by the appellant.
30 Again, consistent with what I said before, at the stage of such an application as this, the foreseeability of physical injury of the type indicated in the additional evidence is enough to make out an arguable case. A submission that such an injury is not of the same kind as the injury suffered by the appellant is a matter that would require a detailed consideration of the facts which would not be appropriate at the stage of this kind of application.
31 The importance of an application of this kind being contested with both parties understanding the issues was discussed in Nowlan v Marson Transport Pty Limited (2001) NSWCA 346, and somewhat similar views were expressed by me in an earlier dissenting judgment in Russo v Aiello (2001) NSWCA 306.
32 In my opinion, this would have been a case in which, if necessary, leave should be given to the introduction of additional evidence.
33 I should say that the views I have expressed do not mean that the appellant is likely to succeed at the hearing. Even if the appellant is successful on a factual dispute such as what, if any, advice was actually given, at the final hearing there may well be very real questions both as to foreseeability and causation. However, in my opinion, the appellant did show a sufficiently arguable case to justify the grant of an extension of time.
34 As I understand it, it is conceded by the respondent that if this Court takes that view, then the other elements justifying an extension of time are satisfied and an extension of time should be granted.
35 In my opinion, the appeal should be allowed with costs and an appropriate extension of time granted.
36 I note that in the Notice of Appeal an order is sought that the costs of the extension application in the District Court are to be costs in the cause, and I would propose that that be granted also.
37 Mr Higgs has reminded me that, in the course of submissions, he submitted that any leave that a Court may grant should be limited to the particulars under (i) in paragraph 6 of the appellant's statement of claim; that is, alleging negligence in failure to instruct in proper use of crutches. The other particulars concern failure to warn, and Mr Higgs submitted that on no basis had the appellant made out an arguable case on failure to warn.
38 That submission was initially made in response to a submission by Mr Pincus, for the appellant, that this was not a failure to warn case so much as a negligent treatment case, part of the treatment being giving of proper instruction as to the use of crutches.
39 The reasons on the basis of which I consider the appeal should be upheld do not depend in any way on that distinction. The appellant's case is certainly not that, had she been warned of the possible consequences of the use of crutches, she would not have undertaken the use of crutches at all. The failure to warn alleged in the statement of claim is really put as part of the failure to instruct. I see no reason why the particulars alleging failure to warn should be excluded from the statement of claim.
40 SPIGELMAN CJ: I agree.
41 HEYDON JA: I agree.
42 SPIGELMAN CJ: The orders of the Court are:
1. The appeal is allowed.
2. The respondent to pay the appellant's cost of the appeal.
3. The costs of the extension application in the District court to be costs in the cause.
4. Pursuant to section 60C of the Limitation Act 1969, that the time for filing the statement of claim in these proceedings be extended to 9 April 1999.
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