Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 96

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 96 KAREN CAREY-HAZELL v GETZ BROS & CO (AUST) PTY LTD, PETER THOMPSON and TREVOR NICHOLLS W75 of 2001 KIEFEL J PERTH 12 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W75 OF 2001

BETWEEN: KAREN CAREY-HAZELL

APPLICANT

AND: GETZ BROS & CO (AUST) PTY LTD

FIRST RESPONDENT

PETER THOMPSON

SECOND RESPONDENT

TREVOR NICHOLLS

THIRD RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 12 FEBRUARY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant have leave to amend the statement of claim in accordance with the proposed minute of the second further amended statement of claim save for paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W75 OF 2001

BETWEEN: KAREN CAREY-HAZELL

APPLICANT

AND: GETZ BROS & CO (AUST) PTY LTD

FIRST RESPONDENT

PETER THOMPSON

SECOND RESPONDENT

TREVOR NICHOLLS

THIRD RESPONDENT

JUDGE: KIEFEL J

DATE: 12 FEBRUARY 2004

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant seeks leave to further amend her statement of claim to add particulars of injury and pain and suffering in addition to those previously pleaded. She has given some evidence about having suffered from these conditions but I think it is accepted by all of the lawyers, including those representing her, that there is at present no medical evidence of them save for the last report of Dr Bernstein dated 3 February 2004 which is sought to be relied upon. That is to say, the leave to amend relies upon the evidence of Dr Bernstein in that report. 2 I would not accept the report in its present form as an expert report. It is not possible to follow it. It is inconsistent in some respects, both internally and with previous reports, and deals with matters which at some points are said by the doctor himself to be outside the area of his expertise. 3 As to the question whether the applicant should be permitted to have Dr Bernstein give further evidence on these topics, it is clear that they are new. They are intended to advance a case of additional symptoms being attributed to the implantation of the mechanical valve, its aftermath and the second surgery. These are important matters in terms of the potential award for damages which the applicant seeks. 4 The respondents are in a position where they have of course some expert medical opinion but they have no neurological expert to whom they can refer. The only neurological expert whom I understood was to be called as a witness in these proceedings is Dr Kermode and the applicant was to call that doctor. It does not, therefore, seem to me possible to avoid prejudice to the respondents since they do not have an expert who could readily answer the questions which might be raised by the report. 5 These proceedings have a long history. There has been plenty of opportunity to seek from Dr Bernstein the information that was sought of him on 28 January 2004 and which resulted in this report. It is obvious from the letters tendered by the first respondent that decisions were made by the applicant's legal representatives. Given that the respondents have prepared their case on the basis of the pleading and have made decisions about the experts necessary to be called for their clients, it seems to me that the applicant must abide by the forensic decisions her legal representatives have made. 6 That leaves the question whether leave to amend should be given in any event on the basis that the pleading at least reflects the lay evidence of the applicant as to the symptoms she has suffered. I have considered this. There would, however, be no expert medical evidence to be adduced by her which would make out these claims. 7 In respect of the contentious matters relating to the symptoms attributable to the valve implant and the sequelae, I consider that the amendment should not be allowed. I will, however, give leave to amend in relation to what I consider to be the non-contentious matters which might reasonably be addressed by the respondents. Leave will not be given to amend in terms of the proposed paragraphs 42(g), 43(c)(iii), (ix), (xiv) and (xvi). 8 Leave to amend is only in part allowed, as I have indicated, and the report of Dr Bernstein will not be able to be relied upon. It will not be accepted in evidence. There may be parts of Dr Bernstein's report which are truly amplification or explanation of his previous reports but, as I have said, it is difficult for me at the moment to see what that is. If the applicant wishes to take those matters up with Dr Bernstein in chief, I will entertain an application for leave to put those further questions but on the basis that they relate to the first two reports. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.