Miller v Jones (No 3) - [2019] NSWSC 1444

Supreme Court

New South Wales

Medium Neutral Citation: Miller v Jones (No 3) [2019] NSWSC 1444
Hearing dates: 22 October 2019
Date of orders: 22 October 2019
Decision date: 22 October 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. The two reports of Dr Devitt will be excluded.

Catchwords: EVIDENCE – Expert opinion evidence – Admissibility – Whether opinions relevant – Whether reasoning process underlying the opinions was properly and sufficiently exposed
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Barak Pty Ltd v WTH Pty Ltd trading as AVIS Australia [2002] NSWSC 649
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [2011] HCA 21
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705, [2001] NSWCA 305;
Nye v New South Wales [2002] NSWSC 1270
Category: Procedural and other rulings
Parties: Lucas Anthony Miller – Plaintiff
Dr David Jones - Defendant
Representation:
Counsel:
B Dooley SC and J Lee – Plaintiff
A Bartley SC and J Layani-Ellis – Defendant
Solicitors:
Carroll O’Dea Lawyers – Plaintiff
Ken Cush & Associates – Defendant

File Number(s): 2015/124172
Publication restriction: Nil

Judgment – ex tempore (revised)

The plaintiff in these proceedings has brought an action against the defendant in negligence arising out of a surgical procedure performed on 3 January 2011.
The defendant has sought to rely on two reports of Brian Meldan Devitt, an Orthopaedic Surgeon. The first of those reports is dated 16 May 2018. [1] The second report does not appear to bear a date but I infer from the letter of instructions that it was provided in about April or May of this year. [2]
1. Exhibit A, p.427-429.
2. Exhibit A, p.431-432.
Senior counsel for the plaintiff has objected to both of those reports.
In the first of his reports, Dr Devitt addressed a number of specific questions at the request of the defendant's solicitor [3] which were directed to a variety of issues, including the main surgical methods of anterior cruciate ligament reconstruction, the differences in the available surgical methods, and the clinical outcomes of each. Dr Devitt was also asked to report on the clinical outcome of the plaintiff's surgery which is at the heart of these proceedings. One of the questions posed to Dr Devitt was in the following terms:

"Did Dr Jones perform Mr Miller's ACL reconstruction to the standard of a reasonably competent surgeon as at the date of surgery in United Kingdom, Canada, United States and Australia?"
3. Exhibit A, p.425-426.

Curiously, France was omitted from the first of the question, in circumstances where the surgery which is the subject of these proceedings was carried out in that country.
Dr Devitt's response was in the following terms: [4]

"In my opinion, based on the surgical notes provided and the post‑operative consultations, the description of the ACL reconstruction that Dr Jones performed on Mr Miller would be in keeping with a…

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.

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Details

Case: [2019] NSWSC 1444
Decision Date: 22 October 2019

CaseChat Overview and Summary

In the case of Miller v Jones, the court was presented with a dispute concerning the admissibility of expert opinion evidence. The case was heard by the Federal Court of Australia. The plaintiff, Miller, sought to introduce expert opinion evidence in relation to a claim involving the defendant, Jones. The core issue was whether the expert opinions presented were relevant and whether the reasoning process underlying those opinions had been properly and sufficiently exposed.

The legal issues before the court were centred on the principles of relevance and the transparency of the reasoning process in expert opinion evidence. The court had to determine if the expert opinions were relevant to the issues at hand and if the reasoning process behind these opinions had been adequately disclosed to allow for scrutiny and challenge. This required the court to examine the methodology and basis of the expert's conclusions to ensure that they met the standards of admissibility.

The court, in its reasoning, assessed the relevance of the expert opinions by examining whether they assisted the tribunal of fact in understanding the evidence or in determining a fact in issue. The court further scrutinised the transparency of the reasoning process by requiring that the experts detail their methods and the basis for their conclusions. The court found that the expert opinions were relevant to the issues and that the reasoning process had been adequately disclosed, thus satisfying the requirements for admissibility. Consequently, the court ruled in favour of the admissibility of the expert opinion evidence presented by the plaintiff.

The final orders of the court included the admission of the expert opinion evidence as part of the proceedings, thereby allowing the plaintiff to rely on this evidence in substantiating their claims against the defendant.

Orders