X v Sydney Children's Hospitals Specialty Network (No 7)
[2011] NSWSC 1360
•10 November 2011
Supreme Court
New South Wales
Case Title: X v Sydney Children's Hospitals Specialty Network & Anor (No 7) Medium Neutral Citation: [2011] NSWSC 1360 Hearing Date(s): 9 November 2011 Decision Date: 10 November 2011 Jurisdiction: Common Law Before: Adamson J
Decision: Refuse to permit Plaintiff's counsel to cross-examine Dr Manson in the time allocated for any matters arising from questions asked by the Defendants' counsel and refuse to permit the Plaintiff to question experts concerning another matter that did not arise.
Catchwords: PRACTICE AND PROCEDURE - Concurrent evidence -Cross-examination on matters arising during concurrent evidence - Procedural fairness
Legislation Cited: Cases Cited: Texts Cited: Category: Interlocutory applications Parties: - "X" (Plaintiff)
- Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant)
- Dr Brian Kearney (Second Defendant)Representation - Counsel: Counsel:
- K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff)
- M.J. Windsor SC, S.A. Woods (First Defendant)
- J.K. Kirk SC, Ms V.A. Thomas (Second Defendant)- Solicitors: Solicitors:
Paul A. Curtis & Co (Plaintiff)
GILD Insurance Litigation (First Defendant)
Blake Dawson (Second Defendant)File number(s): 2002/069388 Publication Restriction: Suppression order in respect of Plaintiff
JUDGMENT
Concurrent evidence concerning breach of duty was given by nine experts (eight in person and one by video link) on 8 and 9 November 2011. The hearing date for this matter was allocated to accommodate the availability of the experts and it was, accordingly, important that matters of breach of duty be dealt with in two days, in order that the remaining two days allocated for experts could be devoted to questions of causation.
The first day of concurrent evidence was principally taken up with questions which I asked of the witnesses. There was a request by Mr Connor, senior counsel for the Plaintiff, that he be permitted to use 60% of the remaining time, that the Defendants between them be permitted 30% of the remaining time and that 10% of the remaining time be available to the Plaintiff to deal with any matters arising from the Defendants' counsel's questions. I acceded to that request.
In the course of discussion between Bar and Bench about the way in which time was to be used I raised the issue of whether any cross-examination on credit would be conducted in the course of concurrent evidence or whether an expert whom a party sought to cross-examine on that basis should be cross-examined in the time allocated for concurrent evidence. I was reminded of the difficulties of obtaining a time when all experts were available and accordingly ruled that any such cross-examination should occur with a parties' allocated time and that no further time would be allowed for this to occur.
The proceedings largely followed this plan. However, when the time came for Mr Connor to deal with matters arising, he attempted to raise two matters, which did not, in my view, arise from questions asked of the Defendants' counsel or from matters arising from observations made by experts following the conclusion of such questions.
These two matters were:
a Cross-examination of Dr Manson on credibility by reference to an paper entitled "Seizures and Neurological Emergencies" dated 2004 of which Dr Manson was co-author, with Dr Abbott which is labelled "Department of Neurology, Women and Children's Hospital, Fifth Year Medical Student Lecture" ( the Manson paper ); and
b Questions concerning the so-called transfer test.
I refused to allow Mr Connor to cross-examine Dr Manson on the Manson paper or to address any questions concerning the second matter to the experts. I indicated that I would comply with Mr Connor's request for reasons later.
I propose to deal with each of these matters in turn.
Mr Connor showed Dr Manson a copy of the Manson paper, which I have marked MFI 16, after having asked him about Dr Abbott, and whether learning about convulsions had changed significantly between 1996 and 2004. Mr Kirk, senior counsel for the Second Defendant, objected on two bases to the questioning of Dr Manson by reference to the Manson paper. He submitted first, that it did not arise and therefore ought not be allowed, and secondly, that it was unfair both to the Second Defendant and to Dr Manson to allow Mr Connor to seek to challenge Dr Manson's credibility at this stage of the concurrent evidence when Mr Kirk would have no chance to respond to the challenge.
I emphasise that I use the word "credibility" here in its broader sense of reliability, rather than honesty. There was no suggestion that Mr Connor wished to impugn the honesty of Dr Manson, but rather his reliability.
If counsel wishes to challenge the credibility of a witness, whether expert or otherwise, the time to do it is in cross-examination, so that the party who has called the witness can, if there are matters arising, have the opportunity to raise such matters with a witness. The different forensic dynamic of concurrent evidence changes this principle somewhat, although not in a fundamental way. The purpose of allowing Mr Connor time to deal with matters arising was to give him a chance to deal with any matters which were exclusively raised through questions asked by the Defendant's counsel. Had he wished to challenge Dr Manson's credibility, he ought to have used the time allocated to him to do so. To permit him to do so at the end of concurrent evidence had a potential to create unfairness.
Had I considered that the Manson paper had the potential to seriously undermine Dr Manson's credibility, I may have considered allowing the questioning to proceed, subject to Mr Kirk's having the right to re-examine on it if he so chose. However, I considered that the limited significance that such questioning could have militated against this course.
For these reasons, I refused to permit Mr Connor the opportunity of cross-examining Dr Manson on the Manson paper.
The second matter about which Mr Connor sought to ask questions was a transfer defect between the blood and the cerebral spinal fluid. He indicated that questions about the protocol for transfer between the blood and the cerebral spinal fluid were germane to the counterregulatory responses that could be used by the body to raise blood glucose in circumstances of hypoglycaemia. In the course of his opening, Mr Connor told me that a normal blood glucose test taken during, or towards the end of, or after, a seizure would not necessarily exclude hypoglycaemia as a cause of the seizure since the seizure itself could have produced a response that had the effect of elevating blood sugar levels to within normal range.
In the course of the first day of concurrent evidence, I asked several expert witnesses about the counterregulatory responses and whether they were effective in children with hyperinsulinism. Mr Connor and Counsel for the Defendants also asked questions germane to such matters. On no occasion was the relationship between the blood glucose and the level of glucose in the cerebral spinal fluid arise. Accordingly I disallowed Mr Connor's questions on the basis that they did not arise.
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