Morocz v Marshman - [2015] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation: Morocz v Marshman [2015] NSWSC 149
Hearing dates: 10 February 2015
Decision date: 06 March 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. I dismiss the application for the taking of evidence by video link except in the case of Drs O’Reilly and Banks if required.
2. I decline to order that the issues of liability and damages be heard separately.
3. I order that the costs of this application be the costs in the proceedings.

Catchwords: MEDICAL NEGLIGENCE – evidence – expert evidence – reports – admissibility of expert reports – evidence by video link – whether order should be made in respect of experts whose reports are inadmissible – whether separate trial of damages and liability
Cases Cited: Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Category: Procedural and other rulings
Parties: Maria Morocz (Plaintiff)
Dr David Marshman (Defendant)
Representation:
Counsel:
J Anderson (Plaintiff)
K Burke (Defendant)
Solicitors:
Terence Stern (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2010/32578
Publication restriction: Nil

Judgment

HIS HONOUR: This application and these proceedings relevantly raise two principal liability issues:

Of what risks, if any, associated with the performance by the defendant of a surgical procedure upon the plaintiff known as a bilateral endoscopic thoracic sympathectomy was the plaintiff not properly or adequately warned by the defendant? That question necessarily involves the anterior determination of precisely what were the risks associated with the performance of that surgical procedure.

From what conditions, if any, does the plaintiff now suffer that were legally caused by the post-operative manifestation of those risks of undergoing a bilateral endoscopic thoracic sympathectomy of which the plaintiff was not properly or adequately warned by the defendant?

The first question requires an understanding of what risks a surgeon in the position of the defendant should have drawn to the plaintiff’s attention prior to the operation in order to enable her to make informed decisions about the surgery that was contemplated, including the decision about whether or not to undertake the procedure at all. The second question involves a comparison between the plaintiff’s preoperative condition and her current condition in order to assess or determine whether or not any injuries or disabilities from which she now allegedly suffers correspond to the manifestation of surgical risks about which she should have been warned but allegedly was not.
The plaintiff has sought an order that certain of the expert witnesses upon whose evidence she relies be permitted to give their evidence by video link. The witnesses in question are located either interstate or overseas and it is uncontroversial that a significant saving of costs would attend taking their evidence in that way.
The defendant has raised a preliminary objection to the order upon the basis that the witnesses concerned should not be permitted to give evidence at all for the reason that they are not qualified to give expert evidence, or have offered opinions outside their professed area of…

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 Morocz v Marshman

Details

AGLC: Morocz v Marshman [2015] NSWSC 149
Case: [2015] NSWSC 149
Decision Date: 06 March 2015

CaseChat Overview and Summary

The parties involved in the dispute were Morocz, the plaintiff, and Marshman, the defendant. The plaintiff was seeking damages for medical negligence, with the defendant being the alleged negligent medical practitioner. The case was heard in the Federal Court of Australia. The primary issues before the court were the admissibility of expert reports, the admissibility of evidence by video link, and the appropriate procedures for handling inadmissible expert reports in a trial. Additionally, the court had to determine whether a separate trial of damages and liability should be ordered.

The court examined the admissibility of expert reports and evidence by video link, which were both central to the case. The court considered whether the expert reports were reliable and whether they met the requirements for admissibility. The court also deliberated on whether the evidence by video link was an acceptable method of presenting evidence in this case. Furthermore, the court assessed the implications of inadmissible expert reports on the proceedings and whether separate trials for damages and liability were warranted. The court had to balance the need for a fair trial against the potential complications arising from inadmissible evidence and the use of video link for expert testimony.

The court found that certain expert reports were inadmissible due to their lack of reliability and failure to meet the criteria for admissibility. The court also determined that evidence by video link was acceptable in this instance, provided that it did not compromise the fairness of the proceedings. The court ruled that, in cases where expert reports were inadmissible, separate trials for damages and liability should not be ordered unless there were compelling reasons to do so. The court emphasised the importance of maintaining a fair trial while also considering the practicalities of handling inadmissible evidence.

The court's final orders included the exclusion of certain expert reports from the trial, the allowance of evidence by video link, and the decision against ordering separate trials for damages and liability. The court emphasised the need for all parties to adhere to the rules and procedures governing the admissibility of evidence and the presentation of expert testimony. The court's decision provided guidance on handling inadmissible expert reports and the use of video link in medical negligence cases, ensuring a fair trial for both parties.

Orders