Harris v Bellemore

Case [2011] NSWCA 196

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Harris v Bellemore [2011] NSWCA 196
Hearing dates:12 and 13 April 2011
Decision date: 21 July 2011
Before: Beazley JA at [1]
McColl JA [2]
Macfarlan JA [3]
Decision:

(1) Appeal allowed in part.

(2) Set aside Orders 3, 4 and 5 made at first instance on 13 August 2010.

(3) Remit the proceedings to the primary judge to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate:

(a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames?

(b) Does the appellant's procurvatum condition constitute a disability of any significance?

(c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy?

(d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant?

(4) Order the respondent to pay the appellant's costs of the appeal.

(5) Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - civil - pleadings - medical negligence claim - whether primary judge erred in finding that plaintiff's case did not include a claim relating to a particular deformity

PROCEDURE - civil - UCPR 31.28 - plaintiff sought leave to tender additional expert's report not served within time required by rule - whether primary judge erred in refusing leave on basis that there were no exceptional circumstances justifying the grant of leave

MEDICAL NEGLIGENCE - causation - plaintiff consulted defendant doctor for leg lengthening treatment - whether primary judge erred in finding plaintiff's psychiatric condition not caused by defendant's negligence in treatment
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Packer v Cameron [1989] 54 SASR 246
Texts Cited: Cross on Evidence, 8th Aust ed (2010)
Category:Principal judgment
Parties: Paul Harris (Appellant)
Michael Bellemore (Respondent)
Representation: Counsel:
B Toomey QC/R Royle (Appellant)
S Donaldson SC/E C Muston (Respondent)
Solicitors:
T D Kelly & Co (Appellant)
Blake Dawson (Respondent)
File Number(s):CA 2010/92491
 Decision under appeal 
Citation:
Harris v Bellemore [2010] NSWSC 176
Before:
McCallum J
File Number(s):
SC 99/49908

Judgment

  1. BEAZLEY JA : I agree with Macfarlan JA.

  1. McCOLL JA : I agree with Macfarlan JA's reasons and the orders his Honour proposes.

  1. MACFARLAN JA

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AGLC
Harris v Bellemore [2011] NSWCA 196
Case
[2011] NSWCA 196
Decision Date

CaseChat Overview and Summary

The appeal in *Harris v Bellemore* concerned a medical negligence claim brought by the appellant against the respondent doctor. The appellant had undergone leg lengthening treatment and alleged negligence in the course of that treatment. The primary judge had made findings that the appellant's case did not include a claim relating to a particular deformity, and that the appellant's psychiatric condition was not caused by the respondent's negligence. The appellant also sought leave to tender an additional expert's report, which had not been served within the time required by UCPR 31.28.

The issues before the Court of Appeal were whether the primary judge erred in finding that the appellant's case did not encompass a claim concerning a specific deformity, whether the primary judge erred in refusing leave to tender the additional expert's report on the basis of no exceptional circumstances, and whether the primary judge erred in finding that the appellant's psychiatric condition was not caused by the respondent's alleged negligence.

The Court of Appeal allowed the appeal in part. It found that the primary judge had erred in refusing leave to tender the additional expert's report, as the rule regarding service times was not intended to prevent the admission of relevant evidence where the opposing party would not be unduly prejudiced. The Court also found that the primary judge had erred in his findings regarding the appellant's deformity and its causation, and the link between the respondent's treatment and the appellant's psychiatric condition.

Consequently, the Court of Appeal set aside certain orders made at first instance and remitted the proceedings to the primary judge. The primary judge was directed to determine specific questions regarding the appellant's deformity, its potential correction, its significance, its causation by the respondent's treatment (other than a specific surgical procedure), and the extent of further damages, if any, to be awarded. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part.

(2) Set aside Orders 3, 4 and 5 made at first instance on 13 August 2010.

(3) Remit the proceedings to the primary judge to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate:

(a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames?

(b) Does the appellant's procurvatum condition constitute a disability of any significance?

(c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy?

(d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant?

(4) Order the respondent to pay the appellant's costs of the appeal.

(5) Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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