Hamlyn v Stanton (No. 2)

[2020] NSWDC 633

District Court

New South Wales

Medium Neutral Citation:	Hamlyn v Stanton (No. 2) [2020] NSWDC 633
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 11, 13, 15, 17, and 19-23
Catchwords:	EVIDENCE – expert evidence – whether opinions outside expert’s field(s) of expertise – whether opinions wholly or substantially based on “specialised knowledge”
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

BACKGROUND

1. The main background circumstances to this case were noted by me in my evidentiary ruling on the admissibility of Professor Turner’s report earlier today.

2. The plaintiff now tenders a report of Dr Stephen Vaughan dated 28 September 2019. The defendant objects to the tender.

3. No curriculum vitae for Dr Vaughan has been furnished. It is, however, apparent on the face of the report that Dr Vaughan is a haematologist and medical oncologist. It is also apparent on the face of the report from the post-nominals that he has received study and training as both a physician and a pathologist.

4. Dr Vaughan’s report is in certain parts. The first part features commentary upon the medical history of the plaintiff’s ‘prostatic condition’. The second part comprises a history of other medical conditions. In the course of this part, Dr Vaughan provides something of a glossary of certain terms. The third part is the provision of his opinion in response to questions raised for his consideration in a letter of instruction of the plaintiff’s solicitor dated 22 August 2018.

5. The defendant objects to all of the report. It is convenient to commence first with the third part of the report, concerning the expert opinion in response to certain questions. This is because, as I understood Counsel’s submission, that the point of the objection to the opinion is also conclusive against the admissibility of other parts of the report.

OBJECTION TO OPINIONS

6. The defendant’s primary objection is that as a haematologist or medical oncologist, Dr Vaughan’s opinion as to the reasonable clinical practice of a urologist, such as Dr Stanton, is outside the field of Dr Vaughan’s expertise. Counsel notes that in his response to two of the questions raised of him, Dr Vaughan has acknowledged his lack of qualification to provide answers to those questions. But if that is so, the defendant submits, the Court cannot be satisfied that he is qualified to opine on other questions raised for his opinion.

7. Secondly, and relatedly, Dr Vaughan has not demonstrated how his opinions are wholly or substantially based upon his specialised knowledge. The absence of transparency in his reasoning is such that Counsel should not be required to tease out in cross-examination the basis for these opinions.

8. In response, Counsel for Mr Hamlyn submits that Dr Vaughan has demonstrated his expertise, partly (at least) by his commentary on the medical records and explanation (which was said to be missing from other experts) of certain terms.

9. Question (a) raised the question of what reasonable clinical practice was there for patients presenting with symptoms which Mr Hamlyn presented with following February 2016.

10. Dr Vaughan’s answer was that both a urologist and radiation oncologist expert need to be consulted, as specific recommendations for early treatment were beyond his area of expertise.

11. Dr Vaughan has, it appears, a broad-based level of study and learning to equip him with several qualifications. But as he himself acknowledges, urology and radiation oncology are not among them. What is missing from the opinion is the question as to why he considers that specialists in both fields of expertise are necessary. His qualifications do not suggest that he is in a superior position to any other medical practitioner to opine on that particular question. In the absence of any demonstrable explanation for his opinion, in my view his answer to question (a) has not been shown to be wholly or substantially based upon his specialised knowledge. I reject his answer to question (a).

12. Question (b) asks of Dr Vaughan was it reasonable clinical practice not to have Mr Hamlyn referred to a radiation oncologist to discuss treatment options.

13. In my opinion, Dr Vaughan’s evidence in response to this question suffers from the same vice as his answer to question (a). Though he refers to certain undefined terms, the substance of his opinion in this answer is a repetition of his answer to question (a). His evidence in response to question (b) is also rejected.

14. Question (c) asks whether based upon Mr Hamlyn's symptoms was radiotherapy and other conservative treatments preferred and should Mr Hamlyn had been offered this as opposed to surgical options.

15. In my opinion, the same problem emerges and, in this context, there is missing any demonstration of reasoning that would indicate the application of specialised knowledge. The answer to question (c) is also rejected.

16. Question (d) asks whether based on Mr Hamlyn's symptoms, on the balance of probabilities, had Mr Hamlyn being treated with radiotherapy and other conservative treatments would the plaintiff have had a better outcome.

17. In my opinion, also, Dr Vaughan’s expertise as a medical oncologist does not equip him to opine on the likely effects or consequences of radiation oncology. He gives no evidence of study of that field, observation or even his acquaintance with the views of radiation oncologists. They are of no more value than the view of an ordinary medical practitioner. I accept the submission that his views here fall outside the ambit of his expertise.

18. Question (e) raised the question of consequences for the plaintiff of the acts and admissions by Dr Stanton that were not competent and Dr Vaughan’s views extended no further than what was already indicated.

MEDICAL HISTORY

19. In my opinion, Dr Vaughan’s commentary of the medical records provides a useful composite summary which does not require particular expertise of a urologist or radiation oncologist. I admit this part of the report.

REFERENCE TO OTHER MEDICAL CONDITIONS

20. I also consider that Dr Vaughan is qualified to give definition of PSA (at point 2) as an oncologist.

21. Dr Vaughan’s views as to the requirement for ‘informed consent’ (points 3.1-3.2) are admissible. He is qualified as stating the applicability of them across the board, as he purports to do. The balance of the items 3.2.1 – 3.3.2 are, however, views that go beyond his expertise and are therefore inadmissible.

22. Item 3.3 is not objectionable, all he is saying is that the disclosure of complications depends upon the particular field of expertise that is in issue.

23. Items 4.0 to 4.3 are also all generate matters which this expert is qualified to opine upon as they should be the subject of disclosure for the purpose of ‘informed consent.’

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Decision last updated: 23 October 2020