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…