Christodoulou v Tunstall Square Fruit and Vegetables Pty Ltd

[2010] VCC 1617

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01179

MARIA CHRISTODOULOU	Plaintiff
v
TUNSTALL SQUARE FRUIT & VEGETABLES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11,12, 15, 16, 17, 18 and 19 November 2010
DATE OF RULING:	19 November 2010
CASE MAY BE CITED AS:	Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1617

RULING

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Catchwords: Admissibility of medical report in jury trial – doctor unable to be called.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards SC with	Zaparas Lawyers
Ms P R Riddell
For the Defendant	Mr P A Scanlon QC with	Thompson Lawyers
Ms H Donmez
HIS HONOUR:

1          A matter arose in the course of this jury trial in respect of the evidence of Mr Robert Marshall, a general surgeon, who examined the plaintiff on behalf of the defendant and provided a report of 12 November 2008.

2          That report, under the heading “Examination”, stated the following:

“Her shoulder however, appears to be completely immobile. She insisted that she was absolutely unable to move her shoulder away from her side to any degree at all, but it was clear that this absence of movement was completely voluntary because the normal movement of elevation of the arm overhead includes 80 degrees of shoulder girdle movement at the sterno-clavicular joint while the scapular rotates around the chest wall. In other words, even if the shoulder joint is completely fused, the arm can still be lifted away 80 degrees from the side by shrugging the shoulder upwards. There was no such attempt to do this in this case. It was also clear that although she seemingly had no flexion/extension movement nor abduction/adduction movement of the shoulder joint at all, she had a completely normal movement of the shoulder joint through internal/external rotation. … Despite this she stood and walked with her arm hanging limply by her side and it was clear that there was a very considerable degree of non-organic input into her presentation.”

3          This passage of evidence was put to a number of witnesses called on behalf of the plaintiff, including the plaintiff herself. It assumed significance in the trial, both in terms of the pathology of the plaintiff’s shoulder, and also as to her credit. It was put by Mr Scanlon to a number of medical witnesses that if the findings of Mr Marshall were correct, it would indicate the plaintiff was exhibiting functional symptoms, or was exaggerating the effect of her shoulder condition.

4          I should point out that when this passage was put to the plaintiff, she denied telling Mr Marshall that she was completely unable to move her shoulder, and denied presenting in that manner in the course of examination.

5          On 18 November 2010, I was advised by Mr Scanlon that enquiries made by his instructor revealed that Mr Marshall had developed cancer and was in the course of chemotherapeutic treatment. He advised that recently Mr Marshall had become seriously ill and was completely unable to attend Court to give evidence. I was advised that counsel’s instructing solicitor had not written to Mr Marshall at an early time to advise him that the trial was listed and to require his attendance. I was not provided with any further details as to any subsequent letters or enquiries made.

6          Mr Richards, on behalf of the plaintiff, indicated that he had made enquiries through other members of the Bar and had been informed that Mr Marshall had been ill with cancer over a considerable period and that that fact was known or ought to have been known by the defendant’s solicitors.

7          In those circumstances, Mr Scanlon applied to have Mr Marshall’s report read to the jury, explaining to them that Mr Marshall was too ill to attend Court.

8          Mr Richards opposed the application. He stated that the passage referred to had assumed significance in the trial, particularly as to the plaintiff’s credit. He stated that by reading the report to the jury, he would not have the opportunity to cross-examine Mr Marshall and put to him a range of matters, including that Mr Marshall no longer actively practised as a surgeon and in fact his practice consisted almost entirely of providing reports on behalf of defendants or their insurers. Deprived of that ability, Mr Richards stated that the evidence of Mr Marshall could have a significant impact upon the jury.

9          I offered each party the opportunity to undertake a voire dire to investigate firstly, the nature and extent of the knowledge of the defendant’s solicitor as to Mr Marshall’s condition, and to enquire as to when it was that Mr Marshall had become ill. Neither party sought such an enquiry.

10        In determining whether or not to permit the evidence to be read to the jury, it is necessary to balance the interests of each party. On the one hand, if I refuse permission for the defendant to read the report, then it is deprived from putting before the jury a significant aspect of its medical evidence. On the other hand, if I permit the reading of the report, the plaintiff is prevented from challenging the evidence and putting to Mr Marshall matters which could undermine his credibility.

11        In this balancing exercise, in my view, it is appropriate to permit Mr Scanlon to read the report to the jury. I propose, in the course of my charge to the jury, to explain to them that Mr Marshall was too ill to give evidence, and that as a result, the plaintiff was deprived from cross-examining him, particularly as to that aspect of his evidence referred to above. In determining whether to accept the evidence of Mr Marshall, and what weight to give it, the jury ought to consider, firstly, that the plaintiff denied his allegations and the presentation he suggested; and secondly, that the plaintiff was deprived of the prospect of cross-examining Mr Marshall in that regard.

12        In those circumstances, I will permit the reading of the report of Mr Marshall to the jury.

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