Polsen v Harrison (No.7) [2021] NSWSC 1575

Supreme Court New South Wales

Medium Neutral Citation: Polsen v Harrison (No.7) [2021] NSWSC 1575 Hearing dates: 11 November 2021 Date of orders: 1 December 2021 Decision date: 03 December 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to rely on the defendant's supplementary statement dated 14 September 2021 is refused. (2) The defendant's notice of motion filed 1 October 2021 is otherwise dismissed. (3) The defendant is to pay the plaintiff's costs of the notice of motion. Catchwords: CIVIL PROCEDUE – late service of supplementary statement – part heard trial – plaintiff already partly cross-examined – unfairness – prejudice to plaintiff – unexplained delay Cases Cited: Polsen v Harrison (No. 4) [2021] NSWSC 251 Category: Procedural rulings Parties: Katrina Marie Polsen (Plaintiff) Dr Harrison (Defendant) Representation: Counsel: JA Hillier (Plaintiff) M Hutchings (Defendant)

Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/204451 Publication restriction: Nil

Judgment 1. On 1 October 2021 the defendant in these proceedings, Dr Harrison, filed a notice of motion seeking to extend time for him to serve and rely upon his supplementary statement dated 14 September 2021. 2. The proceedings involve allegations of medical negligence against Dr Harrison. The matter is part heard. It commenced on 15 February 2021 and after a number of interruptions caused by various interlocutory applications, the proceedings were adjourned part heard on 2 March 2021 with the plaintiff, Ms Polsen, still under cross-examination. 3. Dr Harrison had already provided a very detailed evidentiary statement within the relevant Court timetable in November 2020. That detailed statement made reference to a seminar that he presented in Wagga Wagga in April 2013 prior to the surgery that Ms Polsen underwent at which considerations relating to bariatric surgery were presented by Dr Harrison and others. 4. It has been a constant feature of Ms Polsen's claim that Dr Harrison did not adequately advise her regarding the bariatric surgery he performed and did not advise or adequately advise her regarding alternative treatments to bariatric surgery. It has also been part of her case from its very early stages that Dr Harrison should not have performed the surgery upon her as she was unsuitable. 5. For the reasons that follow, I communicated a ruling to the parties on 1 December 2021 that leave is refused to rely upon the supplementary statement. These are my reasons.