Harris v Bellemore

[2009] NSWSC 1496

NEW SOUTH WALES SUPREME COURT

CITATION:
Harris v Bellemore [2009] NSWSC 1496

JURISDICTION:

FILE NUMBER(S):
99/49908

HEARING DATE(S):
9 April 2009

EX TEMPORE DATE:
9 April 2009

PARTIES:
Paul Harris (Plaintiff)
Dr Michael Bellemore (Defendant)

JUDGMENT OF:
McCallum J     

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Mr T D Kelly / Mr G Watson (Solicitors) (Plaintiff)
Mr M Bozic SC / Mr E C Muston (Defendant)

SOLICITORS:
T D Kelly & Co (Plaintiff)
Blake Dawson (Defendant)

CATCHWORDS:
EXPERT EVIDENCE - s 108C Evidence Act - expert evidence going only to credibility of defendant doctor

LEGISLATION CITED:
Evidence Act 1995

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
The tender of Dr Kitchener's second report dated 8 April 2009 is rejected (MFI 44). 

JUDGMENT:

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MCCALLUM J

9 APRIL 2009

20699/01           PAUL HARRIS  v  DR MICHAEL BELLEMORE

JUDGMENT

1. HER HONOUR:  These are proceedings for medical negligence which have been heard over a period of 14 days and stood over part heard for further hearing in May.  The proceedings are before me today for directions in respect of the further hearing.

1. Since the previous adjournment of the hearing there has been a significant development in the issues in dispute between the parties.  The plaintiff alleges that Dr Bellemore breached his duty of care towards him in that he did not use either conical washers or hinges on the Ilizarov frame fitted to the plaintiff.  The significance of that allegation is that, in the absence of either conical washers or hinges, the frame was insufficiently flexible to enable the correction of a varus deformity in the plaintiff's leg during the distraction process. As a result, it is alleged, the deformity had to be corrected by a second osteotomy, during which the plaintiff suffered a vascular injury. Dr Bellemore had, during the earlier hearing, strongly denied that allegation, alleging that he affixed conical washers to the Ilizarov frame when it was first fixed to the plaintiff's leg.

1. During the first phase of the hearing, the plaintiff served a report from a radiologist touching the issue whether certain images in x-rays taken of the plaintiff's leg during the time of his treatment by Dr Bellemore did in fact depict the conical washers which Dr Bellemore alleged he had fixed to the frame.  That report was tendered by Mr Kelly but the tender was deferred to enable Mr Bozic to consider his position in respect of that evidence.

1. During the adjournment, those instructing Mr Bozic have obtained a further statement from Dr Bellemore in which he indicates that he now accepts that conical washers were not affixed to the frame. That statement has been served on the plaintiff and followed by a letter in which it is indicated that Dr Bellemore now makes the following admissions:

   “(1)       He admits that the failure to use conical washers or hinges on the Ilizarov frame fitted to the plaintiff constituted a breach of his duty of care; and

(2)        as a result of this breach he admits that the second osteotomy on 5 May 1997 was required.”

1. Mr Kelly has today sought to tender a further statement from the radiologist whose report prompted those admissions.

1. The context in which the further report was provided is that Mr Kelly wrote to Dr Kitchener after receiving his first report and posed the following two questions:

“(1)       Could a competent medical practitioner viewing the x-ray of 11 February 1997 and familiar with using Ilizarov frames honestly have thought as at 2009 that the image below the ring in the circle marked 1 was the image of a conical washer?

(2)  Could a competent medical practitioner viewing the x-ray of 11 February 1997 and familiar with using Ilizarov frames have honestly thought as at 2009 that the image identified as a conical washer and partly in the circle marked 2 in fact has underneath it a metallic nut affixed to the rod shown in that x-ray?”

1. Dr Kitchener's responses to those questions are the subject of a further report sought to be tendered today.  Dr Kitchener does not comment on question 1 but in response to question 2 states:

“The nut is a metallic nut.  All metallic objects are known to be opaque to x-ray. On this basis it could be expected that a competent medical practitioner reviewing the x-ray of 11 February 1997 and familiar with using Ilizarov frames should have recognised that the area in the circle marked "2" was not metallic.”

1. Mr Kelly acknowledges that the further report is relevant only because it affects the assessment of the credibility of Dr Bellemore. Accordingly the evidence is not admissible unless it falls within one of the exceptions to the credibility rule contained in section 102 of the Evidence Act.

1. Mr Kelly submits that the evidence falls within the exception contained in section 108C of the Act. That section provides that the credibility rule does not apply to evidence given by a person concerning the credibility of another witness if that person has specialised knowledge based on the person's training, study or experience and the evidence is evidence of an opinion of the person that is wholly or substantially based on that knowledge and could substantially affect the assessment of the credibility of the witness and the Court gives leave to adduce the evidence.

1. Mr Kelly has submitted that I should grant leave to the plaintiff to adduce the evidence contained in Dr Kitchener's second report because it goes to the question whether Dr Bellemore gave the warnings he alleges he gave to the plaintiff and to the issue whether any lateral x-rays of the plaintiff's leg were taken before the Ilizarov frame was affixed to the plaintiff's leg.  The basis on which the evidence is said to go to those issues is that it goes to an assessment of Dr Bellemore's credibility. Mr Kelly submitted that the plaintiff would not have a proper adjudication of the issues in the case if the evidence is not admitted. 

1. There is a level of circularity in the submission that evidence should be admitted under an exception to the credibility rule because it goes to credit. In my view some understanding of the kind of evidence in respect of which the Court should grant leave under section 108C(1) may be gleaned from s 108C(2) which provides specifically that specialised knowledge for the purpose of subs(1) includes “specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse).”

1. It seems to me, having regard to that specific provision, that the purpose of the section was to permit the Court if it sees fit to hear evidence touching directly upon the likelihood of evidence given in a trial being truthful, having regard to behavioural or other matters within the specialised knowledge of the person.

1. The evidence of Dr Kitchener is in my view not in that category.  He does not purport to be a person with specialised knowledge based on his training, study or experience of any aspect of the behaviour of medical practitioners such as to render it likely that medical practitioners will give credible or honest evidence in relation to the images in x-rays. Rather, his opinion in the second report is based on the simple proposition that metallic objects are known to be opaque to x-ray and his apparent further opinion that a competent medical practitioner should know that.

1. Those are not in my opinion matters which are the product of Dr Kitchener's specialised knowledge and I do not think I should grant leave to the plaintiff to adduce that evidence.  Accordingly, the tender of Dr Kitchener's second report dated 8 April 2009 is rejected (MFI 44).  I note that the first report has not, in fact, yet been admitted into evidence as Mr Kelly does not have it with him today but Mr Bozic has indicated that there is no objection to that report and it will go into evidence when it is available.

   **********

LAST UPDATED:
3 November 2010