Hamlyn v Stanton

[2020] NSWDC 634

District Court

New South Wales

Medium Neutral Citation:

Hamlyn v Stanton [2020] NSWDC 634

Hearing dates:

12-13 October 2020

Date of orders:

13 October 2020

Decision date:

13 October 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 15-21 and 33

Catchwords:

EVIDENCE – expert evidence – whether opinion wholly or substantially based on “specialised knowledge” – whether opinion relevant to facts in issue – “basis rule”

Cases Cited:

Allianz Australia Ltd v Sim (2012) 10 DDCR 325

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Makita (Australia) Pty ltd v Sprowles (2001) 52 NSWLR 705

Category:

Procedural and other rulings

Parties:

Mr R Hamlyn (Plaintiff)
Mr R Stanton (Defendant)

Representation:

Counsel:
Mr D Elliott for the plaintiff
Ms J Sandford for the defendant

Solicitors:
Gerard Malouf & Partners for the plaintiff
Moray & Agnew Lawyers for the defendant

File Number(s):

2019/188426

Publication restriction:

Nil

Judgment

INTRODUCTION

1. The defendant objects to the report of Associate Professor Sandra Turner dated 21 July 2019.

2. Associate Professor Turner is a Senior Staff Specialist of the Crown Princess Mary Cancer Centre and Clinical Associate Professor of the University of Sydney. She is also associated with Westmead Hospital. Although her curriculum vitae was not produced at the time of argument, I was supplied with a print out (Exhibit A on the application), apparently published by the New South Wales government, concerning the Western Sydney Local Health District Urological Cancer MDT. Professor Turner was identified as a radiation oncologist who was identified as being one of the team members who were active members of what was described as a ‘multidisciplinary cancer team’. By reference to cancer, I make specific reference to care for patients with urogenital cancer including, amongst other things, prostate cancer. Further, it is noted that she “co-ordinates” care for people with this form of cancer. It is also notable that this ‘team’ was said to include surgeons and medical oncologists.

BACKGROUND

3. In this proceeding, the plaintiff sues his urologist, the defendant, for injuries associated with post-surgical complications, notably incontinence, after the defendant administered treatment for prostate cancer. The treatment was administered in May 2017 following the defendant’s consultations with the plaintiff in February and March 2017.

4. The plaintiff’s case is partly that he should have received adequate advice and information about all his options, including the option of his receiving radiation therapy (particulars (d)-(e) of paragraph 7 of the Amended Statement of Claim). It also partly that he should have been referred for an oncologist’s assessment (particular c to paragraph 7 of the Amended Statement of Claim).

5. To make out his case, the plaintiff would, it seems to me, need to establish that on the basis of information or advice which he says he should have received (whether from a urologist, or from an oncologist, or both), he would have elected to undergo the radiation therapy, that this form of treatment would have been no less effective in removing the cancer and, further, that he would not have sustained the injuries and disabilities that he allegedly sustained. At least an incidental aspect to his election as to the form of treatment would be what side-effects or possible complications he might sustain if he elected to receive radiation therapy.

6. The plaintiff has given evidence. During cross-examination, it was suggested to the plaintiff on the defendant’s behalf that Dr Stanton did provide Mr Hamlyn with the alternative option of radiation therapy. Specifically, amongst other things, it was put to Mr Hamlyn that Dr Stanton had indicated that if surgical treatment was unsuccessful in removing the cancer, it might be possible to thereafter have radiation therapy; however, if he chose to have radiation therapy, it could be difficult for him thereafter to have a surgical procedure.

THE DEFENDANT’S OBJECTIONS

Answers to sub-paragraphs (a) & (d)

The evidence

7. Counsel for the defendant objects to Professor Turner’s evidence in response to the enumerated questions raised of her. They fall into two categories. The first category concerns the desirability of a referral to an oncologist.

8. The first question is whether it was required that prior to any treatment under the RANZCR guidelines that the plaintiff has a consultation with both a urologist and a radiation oncologist and be advised of the pros and cons of each treatment option.

9. The gist of Professor Turner’s answer was that a June 2018 Position Statement issued by an organisation, the Royal Australian and New Zealand College of Radiologists (‘RANZCR’), was said to be supportive of the view that men with prostate cancer should be seen by both an oncologist as well as an urologist. Whilst that itself was not a guideline, in Professor Turner’s opinion urologists themselves are not equipped to counsel and inform patients of the merits of radiation therapy and were, at any rate, self-interested as being the only specialists to discuss the modality of treatment.

10. The second question is whether Mr Hamlyn should have also been referred to an oncologist to discuss treatment options.

11. The gist of Professor Turner’s answer to that question was that for a patient in Mr Hamlyn’s circumstances, surgical treatment and radiation therapy were likely to generate equivalent outcomes, but the side effects and costs may be quite different. She considered that a urologist was ill-equipped to opine in relation to modern radiation therapy options including, I infer, the effects and costs. The Position Statement to which she has regard to apparently supports the view that men should see both specialists.

The objections

12. No point was taken that Professor Turner’s report was not served as directed, or in accordance with Court rules. Further, no point was taken as to her expertise as an oncologist. I understand that Professor Turner has not been required to attend for cross-examination.

13. The defendant however, objects that her evidence in the above respects is (a) not relevant; and (b) founded upon a Position Statement which came into existence after the events in the proceeding. As to the former, the defendant submits that the issue concerns the reasonableness of the conduct of a urologist and that the views of an oncologist are not capable of resolving that broad issue.

14. I might note that Professor Turner also (in answer to question (f) of her report) referred to a different document published by the Faculty of Radiation Oncology (Royal Australian and New Zealand College of Radiologists) in support of her argument as to the desirability of patients seeing both specialists. This was the second link in the report.

15. The test for relevance does not present a high bar. It is whether the evidence is capable of assisting the Court to resolve issues. In my view, the former objection as to relevance is excessively narrow. Professor Turner’s evidence that urologists are not trained or qualified to accurately explain the single ‘pros and cons’ of radiation therapy as a form of treatment, including the ‘logistics, side effects, benefits and costs’ is evidence which satisfies the test of relevance and in respect to which is the result of the application of specialised knowledge.

16. Having regard also to her membership of a multidisciplinary team which appears to include surgeons, and who, specifically, “coordinates” care, this evidence is capable of leading to an inference that Professor Turner is not only likely to have engaged with patients, but also had dealings with surgeons about appropriate treatment modalities.

17. On the other hand, I do not regard her evidence in the last statement in her answer to question (a) as to a urologist’s ‘inherent financial conflict’ as being the product of specialised knowledge and I would reject the admission of that particular sentence.

18. Similarly, it is also unexceptional, but relevant for Professor Turner to opine, as she does in answer (d), that the treatment pathways, side effects and costs are different to both forms of treatment.

19. Her evidence about the practicability or accessibility of radiation oncology consultation is the product of specialised knowledge and is admissible. It is also admissible for her to comment, based upon the instructions or materials she has been supplied with, to opine on whether or not Dr Stanton did, or was even capable, of supplying information about ‘modern radiation therapy options for management’.

20. On the other basis for objection, being the 2018 Position Statement, I would not exclude her opinion evidence on the basis that it is reliant upon a paper apparently published after the events in question. It has not been proven by the defendant that the relevant contents of the paper were not current in the period from February to May 2017; which might indicate a lack of relevance. Further, although Professor Turner has relied upon the report to some degree, I do not regard it as the only basis for her opinion.

21. As I have noted, in the absence of a requirement for Professor Turner to attend to be cross-examined, it was not possible for the defendant’s Counsel to explore these questions on a voir dire. As matters stand, it is a matter of conjecture as to what extent, if at all, the content of this position statement was or was not current in the first half of 2017. I am not prepared to exclude the evidence in these circumstances.

Answers to (e) and (f)

22. Professor Turner’s evidence in regard to these questions was, as the defendant Counsel’s characterised, relevant to single ‘outcomes’.

23. Question (e) raised the question of whether, on the balance of probabilities, Mr Hamlyn was treated with radiotherapy or other conservative treatment, would he have had a better outcome and avoided the symptom of urinary incontinence, thus avoiding the need for regional sling surgery.

24. The substance of Professor Turner’s evidence was that it was unlikely that Mr Hamlyn would have suffered permanent urinary incontinence after radiation therapy, though she did add that he may have had some other lower urinary symptoms.

25. Question (f) asked Professor Turner to specify what other treatment could have and should have been administered to Mr Hamlyn in accordance with competent professional practice, and outline whether it could have resulted in a better outcome for our client on the balance of probabilities. Professor Turner was requested to provide reasoning and supportive research and literature.

26. The substance of Professor Turner’s evidence was that radiation therapy would have produced a better outcome in terms of the patient’s ‘freedom from treatment toxicities and complications’. Specifically, it carried a small risk of rectal side effects.

27. The defendant objects that, in relation to this evidence, her evidence does not satisfy the ‘basis rule’ to be derived from Makita (Australia) Pty ltd v Sprowles (2001) 52 NSWLR 705 and/or that her evidence is not shown to be the result of the application of specialised knowledge.

28. Counsel for the defendant referred to the observations of the plurality in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 where, at paragraph [37], the Court said that in relation to Heydon JA’s view in Makita that

“…it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’ and on which the opinion is ‘wholly or substantially based’ applies to the facts assumed or observed so as to produce the opinion propounded”.”

29. Counsel submitted that by her evidence, Professor Turner had not demonstrated that her views were substantially based upon her specialised knowledge.

30. However, at [37], the plurality also observed:

“That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience” being an opinion “wholly or substantially based” on that “specialised knowledge” will require little explicit articulation or amplification once the witness has described his or her qualifications and experience and has identified the subject matter about which the opinion is proffered.”

31. Further, I note that in Allianz Australia Ltd v Sim (2012) 10 DDCR 325, Allsop P (Meagher JA agreeing) said at paragraph [9]:

“…that the two requirements of the section [s 79] and the explanation that is ordinarily required as to how the opinion applies to the facts should not be elevated into something more than they are: procedural rules to limit evidence to that which is rational and coherent and properly arising from expertise and directed to areas in respect of which the court needs assistance.”

32. It is unfortunate perhaps that the full extent of Professor Turner’s experience and training is not currently before the Court in an accessible curriculum vitae. Nevertheless, her position and academic qualifications are sufficiently apparent. As I have indicated, the print-out emanating from the New South Wales Government also fleshes out her current position. This includes her active membership of a multidisciplinary team in which, I think, it is capable that it can be inferred that she has dealings with surgeons and other oncologists.

33. In my view, on the matter of admissibility, the Court is satisfied that it has been demonstrated that Professor Turner’s specialised knowledge has been wholly or substantially brought to bear in her evidence in respect to answers (e) and (f).

34. If there is some ‘opacity’ in the reasoning, then I note, again, that had Professor Turner been required to attend for cross-examination, it may have been possible for the reasoning to be probed, either in evidence or on a voir dire. The matters of which the defendant complains on the state of the evidence before the Court are matters of weight.

**********

Decision last updated: 23 October 2020