Supreme Court New South Wales Medium Neutral Citation: CHAKER v TOMPSETT (No 2) [2011] NSWSC 992 Hearing dates: 12 August 2011 Decision date: 01 September 2011 Jurisdiction: Common Law Before: HOEBEN J Decision: Report admissible with deletions. Catchwords: PRACTICE AND PROCEDURE - Further medical report obtained for retrial - contents inconsistent with evidence at first trial - admissibility - report raising new issues already rejected - report admissible subject to deletion of rejected material. Category: Procedural and other rulings Parties: Patricia Chaker - Plaintiff Elizabeth Tompsett - Defendant Representation: Ms M Avenell - Plaintiff Ms J Sandford - Defendant TressCox Lawyers - Plaintiff Lamrocks Solicitors & Attorneys - Defendant File Number(s): 2011/00065254 Judgment 1HIS HONOUR: Nature of proceedings The defendant seeks an order that the plaintiff not be allowed to rely upon the report of Dr G Mark Malouf, dated 22 June 2011, either in whole or in part on the retrial of this matter. So that the matter could be finalised without undue delay, I directed that it was not necessary to file and serve a motion to that effect and that the Court would allow the application to be made orally. Factual background 2The factual background to the proceedings generally and to this application is set out in Patricia Chaker v Elizabeth Tompsett [2011] NSWSC 135. This judgment should be read with that judgment. 3The effect of that judgment was to disallow certain paragraphs in an Amended Statement of Claim sought to be filed on behalf of the plaintiff. The basis for the rejection of those paragraphs was that they raised issues which were new and which had not been considered in the first trial. 4The evidence that was placed before the Court on this application was a letter of instruction from the plaintiff's solicitors to Dr Malouf, dated 8 June 2011 (exhibit M1); the report of Dr Malouf of 22 June 2011 (exhibit M2) and a redacted extract of the evidence given by Dr Malouf in the first trial on 21 March 2007 (exhibit M3). 5The letter of instruction (exhibit M1), posed three questions for Dr Malouf. The first asked Dr Malouf to make an assumption, which was contrary to the evidence given by the defendant in the first trial. The second asked Dr Malouf to assume that certain evidence was given by the defendant at the first trial and to then comment on whether that evidence and subsequent conduct of the defendant was consistent with reasonable care and skill of a general surgeon in 2003. The third asked Dr Malouf to express an opinion as to whether the development of lymphoedema by the plaintiff would have been avoided had the defendant referred her to him or some other similarly qualified surgeon before operating. Submissions 6The defendant raised these issues with Dr Malouf's report: (i) The expressions of opinion in the report contradicted evidence given by Dr Malouf at the first trial. (ii) The report raised issues which were rejected when the amendments to the Statement of Claim were dealt with. (iii) If the plaintiff were allowed to rely upon the report, the retrial would be unreasonably and unnecessarily extended and costs would be increased by the need for the defendant's experts to answer it. 7The plaintiff responded as follows: (1) The opinion by Dr Malouf in answer to question 2 did no more than respond to evidence given by the defendant at the first trial which Dr Malouf did not have a chance to answer. (2) Any ruling in relation to Dr Malouf's report was a matter for the trial judge and not for a judge case managing the matter. Consideration 8I propose to allow the plaintiff to substantially rely upon the report. The report expresses opinions different to those which Dr Malouf gave in evidence in the first trial. That, however, is not a matter which renders the report inadmissible. What it mean is that there will be a real credit issue in the retrial relating to this apparent change of position by Dr Malouf. 9It probably means that although evidence can still be taken concurrently from all of the medical experts, liberty may be granted to the defendant to cross-examine Dr Malouf first on these inconsistencies before concurrent evidence is taken. 10I agree with the defendant that there are some parts of the report which raise issues which I ruled against in my earlier judgment. Accordingly, as a condition of the plaintiff being able to rely upon the report, I direct that the following parts of it be redacted: The second sentence in paragraph numbered 4. on page 1 of the report commencing with the words "With such an unusual set of ..." and concluding with the words "this was a complicated set of veins." The whole of paragraph 15. on the third page of the report commencing with the words "Recognising the pelvic vein condition" and concluding with the words "are complicated by pelvic venous reflux". 11The question of additional costs and matters of that kind is really the province of the trial judge and it would be inappropriate for me to make a ruling in advance of the trial on those issues. However, the defendant has fairly and squarely raised those issues and the plaintiff is now on notice that there may well be costs consequences flowing from the use of this report in the retrial. Conclusion 12While the final decision as to the admissibility of the report lies with the trial judge, I will allow the plaintiff to proceed on the basis that she can rely upon the report, subject to the two areas of redaction to which I have referred. 13While I agree with the submissions of the defendant that there are expressions of opinion in the report which appear to contradict the evidence of Dr Malouf given in the first trial, that is a matter for cross-examination. As the defendant foreshadowed, that fact alone may give rise to certain costs consequences in the retrial but again that is a matter for the trial judge. 14In relation to costs, the report raises issues about which the defendant was entitled to complain. That having been said, the defendant has only partly succeeded in maintaining its objection to the report. In those circumstances it seems to me that the most appropriate order is that the costs of this application should be the defendant's costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2011