Miller v Jones (No 4)

[2019] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation:	Miller v Jones (No 4) [2019] NSWSC 1447
Hearing dates:	23 October 2019
Date of orders:	23 October 2019
Decision date:	23 October 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [6]
Catchwords:	EVIDENCE – Admissibility - Whether evidence expressed an expert opinion or whether it was properly viewed as an statement of fact – No point of principle
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)

1. In these proceedings the plaintiff brings an action in negligence against the defendant arising out of a surgical procedure which was performed on 3 January 2011.  That surgery came about as a consequence of the plaintiff suffering an injury to the anterior cruciate ligament of his right knee whilst playing professional Rugby League in France on 6 December 2010.

2. It is common ground that following the incident, the plaintiff consulted the defendant who carried out a reconstruction of his anterior cruciate ligament on 3 January 2011.  It is the plaintiff's case that the defendant was negligent in carrying out that reconstruction by, amongst other things, performing it in such a way that the anterior cruciate ligament graft was "highly vertical in the front of the notch and completely in the wrong position."

3. In his evidentiary statement [1] the defendant stated (inter alia) the following:

“I used a transtibial approach and drilled the femoral tunnel at 10‑11 o'clock.”

1. Exhibit A, p.124 at [14] of the defendant’s statement.

4. That passage has been objected to by senior counsel for the plaintiff, on the basis that it expresses an opinion, rather than a statement of fact.  It is, as I have indicated, the plaintiff's case that the graft was inserted at a position which was very much towards the vertical, and which might be described as a position of more 12 o'clock, than 10 to 11 o'clock, and that this was reflective of a lack of care on the part of the defendant.

5. In my view, the statement made by the defendant is a statement of what he did.  It does not, in my view, encroach into the area of expression of professional opinion.  The defendant has simply stated that he drilled the femoral tunnel in a particular position, by reference to a clock.

6. Whether he did or did not, what the consequences may or may not have been, and whether any of these matters reflect a lack of care, are all factual issues I have to determine. However, for the reasons that I have given, the statement in question is an assertion of fact, which is both relevant and admissible.

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Endnote

Decision last updated: 27 February 2020