Tinnock v Murrumbidgee Local Health District (No 3)

[2016] NSWSC 88

Supreme Court

New South Wales

Medium Neutral Citation:	Tinnock v Murrumbidgee Local Health District (No 3) [2016] NSWSC 88
Hearing dates:	8; 9; 10; 11; 12 February 2016
Date of orders:	12 February 2016
Decision date:	12 February 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The report of Dr Rea dated 11 December 2012 is admissible
Catchwords:	EVIDENCE – admissibility – expert evidence – wether senior specialist surgeon has relevant specialised knowledge of general surgeon– whether opinion based on specialised knowledge
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Kylie Bernadette Tinnock (Plaintiff) Murrumbidgee Local Health District (Defendant)
Representation:	Counsel: A J Bartley SC (with R Ingram) (Plaintiff) S Barnes (Defendant) Solicitors: TressCox Lawyers (Plaintiff) Commins Hendriks Solicitors (Defendant)
File Number(s):	2012/296883

JUDGMENT - Admissibility of 11/12/12 report of Dr Rea

1. Mr Barnes of counsel, who appears for the defendant, has objected to the tender of the report of Dr Rea of 11 December 2012. Mr Barnes’ essential contention is that Dr Rea's report does not comply with the conditions of admissibility established by the provisions of section 79 of the Evidence Act 1995 (NSW) with respect to the opinion evidence of experts.

2. To support his argument he has tendered the letter from the plaintiff's solicitors dated 8 November 2012 qualifying Dr Rea to give evidence and points out that Dr Rea was not asked to express opinions about liability. He was qualified simply to assess any disfigurement of the plaintiff resulting from the scarring she suffered because of the multiple abdominal surgeries she underwent in 2010.

3. For his assistance he was provided with the reports of Professor David Morris and Dr Geoffrey Miller who had been qualified to express opinions relevant to liability. But, I repeat, Dr Rea was not asked any questions calculated to elicit his opinion about those matters. However, in providing his report he recorded matters of history– presumably as assumptions he made– matters relayed to him by Mrs Tinnock which touched upon her concerns about what happened as a result of the treatment that the defendant provided for her condition. In response to her concerns Dr Rea then expressed opinions about the use of drains in abdominal surgery, the phenomenon of prosthetic surgical-mesh infection, and the desirability of removing the mesh in the face of it as a means of avoiding its deterioration to the very serious type of infection suffered by the plaintiff in this case.

4. Dr Rea is a plastic and reconstructive surgeon with a particular interest in the surgery of the hand. The argument about his expertise I think relates to the question that the business, if I may put it that way, of repairing incisional hernias is the business of the general surgeon with an interest in work of that type and that a specialist plastic surgeon has different specialised knowledge and is in a different field of expertise from the four general surgeons who will give concurrent evidence.

5. As Mr Bartley points out, no objection of this type was taken to Dr Rea's report at the time it was served, not long after it was obtained in December 2012. Questions were raised about whether Dr Rea should be permitted to participate in the conference of experts convened in February 2015, but no frank objection was articulated, propounded and ruled upon at the time the matter was referred, even though the matter came before a judge of this Division for the purpose of resolving a dispute between the parties about the form of questions that should be submitted to the panel of experts for their consideration during the conference.

6. It should be said that Mr Barnes flagged this objection earlier this week. Now is the first opportunity he has had to advance it.    

7. The conditions of the admissibility of expert evidence were considered by the High Court of Australia in the case of Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588.

8. The plurality in that case (at [30]-[32]) identified three conditions of admissibility. The first is that the opinion must be relevant to an issue in the proceedings. Relevance is normally identified by asking what finding of fact the tenderer asks the judge to make based on the opinion evidence. Clearly Dr Rea's evidence is relevant because Mr Bartley will be submitting that I should find, on the basis of Dr Rea's opinion, that Dr Payne, the treating surgeon, departed from the normal professional standards when he: a), failed to use a negative-pressure suction drain at the original operation; and b), when he failed to remove the mesh when complications became evident on or about 15 June 2010.

9. The second condition of admissibility is that the person expressing the opinion has, or is possessed of, specialised knowledge. There can be no serious question that Dr Rea has certain specialised knowledge. He has Bachelor degrees in Medicine and Chemistry; he is a Fellow of the Royal College of Surgeons of England; and he is also a Fellow of the Royal Australasian College of Surgeons. I infer that he is a legally qualified medical practitioner practising as a reconstructive and plastic surgeon.

10. The question about whether Dr Rea possesses specialised knowledge of the type that entitles him to opine on the questions before me is a nice one. Mr Barnes argues that they are questions for general, not plastic, surgeons. However, I am of the view that although his expertise lies in plastic, rather than general, surgery, he is nonetheless a surgeon and it seems to me that I can infer on the basis of the material I have presently available to me, that questions of the management of the risk of post-surgical infection are likely to be common across the various branches of the surgical profession. I am of the view that he possesses relevant specialised knowledge.

11. The third condition of admissibility is the need to demonstrate that the opinions expressed are in fact substantially based upon the expert's specialised knowledge. I interpolate that the plurality judgment in the High Court in Dasreef (at [37]) points out that in the case of senior specialist medical practitioners the full rigours of what may be referred to as the Makita v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (at 744 [85]) approach may not be applicable to expressions of opinion within the expert’s apparent field of specialisation. It may readily be apparent from the content and context of the report that the opinions expressed are in fact based upon, substantially, the expert's specialised knowledge.

12. In my judgment the report of Dr Rea falls into that category and I am well satisfied that the opinions he expresses about the use of drains and the need to remove mesh are substantially based upon his specialised knowledge as a specialist surgeon.

13. Naturally of course, as in all cases, different views have been expressed about these questions and the admissibility of Dr Rea's report will go in to the evidential mix to be assessed with the rest of the evidence, particularly the concurrent evidence I will hear this afternoon. I am satisfied that the report is admissible and I will admit it on the tender of Mr Bartley of Senior Counsel.

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Decision last updated: 22 February 2016