Harris v Bellemore [2011] NSWCA 196

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harris v Bellemore [2011] NSWCA 196 Hearing dates: 12 and 13 April 2011 Decision date: 21 July 2011 Before: Beazley JA at [1] McColl JA [2] Macfarlan JA [3] Decision: (1) Appeal allowed in part. (2) Set aside Orders 3, 4 and 5 made at first instance on 13 August 2010. (3) Remit the proceedings to the primary judge to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the following questions and to make such consequential orders as may be considered appropriate: (a) Would the appellant's procurvatum condition have been corrected by the fitting of hinges to the appellant's Ilizarov frames? (b) Does the appellant's procurvatum condition constitute a disability of any significance? (c) To what extent was this condition caused by the respondent's treatment of the appellant other than in performing the second osteotomy? (d) If yes to both (a) and (b) and in light of the answer to (c), what further damages, if any, should be awarded to the appellant? (4) Order the respondent to pay the appellant's costs of the appeal. (5) Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - pleadings - medical negligence claim - whether primary judge erred in finding that plaintiff's case did not include a claim relating to a particular deformity