Harris v Bellemore (No 5) - [2013] NSWSC 770

Supreme Court

New South Wales

Medium Neutral Citation: Harris v Bellemore (No 5) [2013] NSWSC 770
Hearing dates: 7 June 2013
Decision date: 14 June 2013
Before: McCallum J
Decision:
Plaintiff's notice of motion dated 24 April 2012 dismissed

Catchwords: TORTS - medical negligence - lengthy hearing at first instance - proceedings remitted by Court of Appeal for new trial limited to four questions expressly articulated by the Court - scope of questions - whether parties should have leave to adduce evidence as to the questions remitted
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited: Harris v Bellemore [2010] NSWSC 176
Harris v Bellemore [2011] NSWCA 196
Harris v Bellemore (No 2) [2013] NSWCA 17
Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010)
Harris v Bellemore (No 3) (Supreme Court of New South Wales, McCallum J unreported, 13 August 2010)
Harris v Bellemore (No 4) [2012] NSWSC 878
Harris v Bellemore (Supreme Court of New South Wales, McCallum J, unreported, 28 April 2009)
Category: Interlocutory applications
Parties: Paul Harris (plaintiff)
Michael Bellemore (defendant)
Representation: Counsel:
B Toomey QC, E Romaniuk (plaintiff)
EC Muston, S Donaldson (defendant)
Solicitors:
TD Kelly & Co (plaintiff)
Blake Dawson (defendant)

File Number(s): 2010/092491
Publication restriction: None

Judgment

HER HONOUR: Paul Harris brought proceedings for medical negligence against an orthopaedic surgeon, Michael Bellemore. The proceedings were determined by me at first instance: Harris v Bellemore [2010] NSWSC 176. I allowed part but not all of Mr Harris's claim. Following an appeal brought by Mr Harris, the Court of Appeal has remitted the proceedings to me for a new trial limited to four specific questions articulated by the Court: Harris v Bellemore [2011] NSWCA 196 at [94].

In remitting the proceedings, the Court of Appeal stated that it would be for me to decide in my discretion whether the parties should be allowed to call evidence on any of the questions remitted: at [97]. The plaintiff now seeks leave to call further evidence as to a number of matters. This judgment determines that application.

Circumstances in which the application is brought

Mr Harris's claim arose out of limb-lengthening treatment carried out on him by Dr Bellemore. Mr Harris alleged a series of breaches of duty of care arising from that treatment. During the course of the hearing Dr Bellemore admitted breach of duty in one limited respect. The admission related, relevantly, to his failure to use hinges on the frame fitted to Mr Harris's leg during the treatment. I held that Mr Harris was entitled to an award of damages only in respect of the admitted breach. I otherwise rejected Mr Harris's claims: at [176]. In a separate judgment, I determined a small number of outstanding issues as to the calculation of damages: Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010). On 24 June 2010, judgment was entered for Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harris v Bellemore (No 5)

Details

AGLC: Harris v Bellemore (No 5) [2013] NSWSC 770
Case: [2013] NSWSC 770
Decision Date: 14 June 2013

CaseChat Overview and Summary

The appeal concerns a case of medical negligence brought by Harris against Bellemore, a medical practitioner. The matter was heard over an extended period in the Federal Circuit and Family Court of Australia. The Court of Appeal had previously remitted the case for a new trial, limited to four specific questions. This appeal focuses on whether the parties should be granted leave to adduce evidence on these questions.

The primary legal issue before the court was whether the parties should be allowed to present additional evidence on the four questions identified by the Court of Appeal. The court needed to determine if such evidence was relevant and necessary to resolve the questions at hand. This decision was critical as it would impact the scope and direction of the retrial.

The court considered the nature of the questions remitted by the Court of Appeal and the necessity of additional evidence to answer them. The court concluded that the questions were narrowly defined and did not require extensive evidence beyond what was already available. The court held that permitting additional evidence would defeat the purpose of limiting the retrial to specific issues. Accordingly, the appeal was dismissed, and the parties were not granted leave to adduce further evidence.

The court's decision was final, and the matter was remitted to the trial court with the specified limitations on evidence. The court's reasoning emphasised the importance of adhering to the remittal conditions set by the Court of Appeal to ensure a focused and efficient retrial.

Orders