Almario v. Varipatis [2012] NSWSC 1557

Supreme Court New South Wales

Medium Neutral Citation: Almario v. Varipatis [2012] NSWSC 1557 Hearing dates: 3/12/2012 to 7/12/2012, 10/12/2012 to 11/12/2012 and 14/12/2012 Decision date: 14 December 2012 Jurisdiction: Common Law Before: S.G. Campbell J Decision: See paragraph 32 Catchwords: EVIDENCE - admissibility - whether evidence relevant - whether evidence opinion evidence - whether evidence should be excluded under s135 Evidence Act 1995 (NSW) - whether use that may be made of evidence should be limited under s136 Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allstate Life Insurance Co. v. ANZ Banking Group Limited (No. 5) (1996) 64 FCR 73 Dasreef Pty Ltd v. Hawchar (2011) 243 CLR 588 Lithgow City Council v. Jackson (2011) 244 CLR 352 Seltsam Pty Ltd v. McNeill [2006] NSWCA 158 Papakosmas v. The Queen (1999) 196 CLR 29 Category: Interlocutory applications Parties: Luis Almario (Plaintiff) Emmanuel Varipatis (Defendant) Representation: Counsel: D.E. Graham S.C with N.J. Broadbent (Plaintiff) D.J. Higgs S.C. with Dr. E. Peden (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2012/10166

Judgment 1On 6 December 2012 I made an advanced ruling under s.192A Evidence Act 1995 (NSW) ("the Act") that the evidence of Professor Thomas Borody was admissible. His statement was received for the purpose of the ruling as MFI 2, and is now Ex. D4. I postponed the pronouncement of reasons to enable the defendant to be further cross-examined about matters relevant to Prof. Borody's involvement before he was called when available later that day. These are my reasons for my ruling. 2The plaintiff sues the defendant for damages for personal injury occasioned by the defendant's alleged professional negligence as a general medical practitioner. (A claim in the tort of deceit has now been abandoned). 3The injury said to have been caused by the asserted negligence is the progression of a pre-existing fatty liver degeneration, or disease, to cirrhosis, liver failure, and, eventually, cancer. This progression is said to have been avoidable by the exercise of reasonable care on the part of the defendant. 4Central to the plaintiff's case in negligence is that reasonable care required the defendant to refer the plaintiff to a specialist hepatologist, or other relevantly qualified specialist, for the assessment and treatment of his liver condition. It is said that had that occurred from about the time that the plaintiff was first referred to Prof. Borody in October 1997, a liver biopsy would have been undertaken to accurately assess the degree of progression of the disease which at that time probably would not have included cirrhosis, and that a proactive, multidisciplinary regime of treatment would have been instituted which would have arrested the progress of the liver condition by treating the plaintiff's co-morbidities of morbid obesity, diabetes mellitus and metabolic syndrome. The argument proceeds on the basis that, given the plaintiff's long struggle with his weight, enjoying only partial success in the past with regimes based on lifestyle changes such as diet and exercise, the probabilities favour further referral to a general surgeon to undertake bariatric surgery. 5Prof. Borody is not a hepatologist. He is a specialist gastroenterologist. The treatment of liver disease is outside his sphere. However, the defendant referred the plaintiff to Prof Borody in October 1997 for the investigation, inter alia, of right quadrant upper abdominal pain, and he treated the plaintiff, in his words, on various occasions between 29th October 1997 and 27th February 2000. 6Prof. Borody was formerly the second defendant in this claim, but the plaintiff consented to judgment in his favour in or about September 2012. 7In his statement, Prof Borody provides a narrative of his treatment of the plaintiff and expresses the view that although he was aware from the outset of his treatment of the plaintiff's fatty liver syndrome, he would not have referred the plaintiff for assessment for the purpose of bariatric surgery. During the period 1997 to 2003, he had referred some patients to bariatric surgeons but never in relation to the management of a patient with fatty liver syndrome. He is not a surgeon, but he stated his belief at that time about the effectiveness of the surgery in the management of morbid obesity and expresses the view that in any event, for reasons he fully rehearses, the plaintiff was not a suitable candidate for that surgery. 8During the course of argument Mr. Higgs SC, who appears with Dr. Peden for the defendant, did not press the concluding clause of paragraph 20 and the whole paragraph 25, of what was then MFI 2. Senior Counsel also accepted that paragraph 24 and other apparent expressions of opinion contained in the statement should be limited under s.136 of the Act to mere statements of belief on the part of Professor Borody. That is, Senior Counsel was not calling Professor Borody and tendering his statement as expert opinion evidence in the case. 9Mr. Graham SC, who appears with Mr. Broadbent for the plaintiff, objects to the admission of the evidence. Senior Counsel accepted that the evidence is relevant within the meaning of s.55 of the Act and therefore, prima facie, admissible under s.56. It was submitted, however, that regardless of how it is characterised by the defendant, the gravamen of the evidence contains matters of opinion and accordingly the opinion rule created by s.76 operated to exclude what otherwise might have seemed admissible. It was submitted that, to the extent to which the opinions are expert opinion within the exception to the opinion rule created by s.79 of the Act, the important requirements of Part 36 of the Uniform Civil Procedure Rules 2005, which govern the admission of expert evidence at a hearing, have been infringed at a number of different levels, including Rule 36.23 concerning the need for the expert at the time the opinion was expressed to articulate that he had read the code of conduct and agreed to be bound by it. To the extent to which some of the infringements were capable of being cured by the favourable exercise of my discretion, no case calling for such an indulgence had been made out. Moreover, Senior Counsel argued that were I otherwise satisfied that the evidence was properly admissible, I should exclude it under s.135 of the Act on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff. 10In regard to s135, Senior Counsel made the following points: (a)The first notice the plaintiff received of the intention to introduce this evidence was during Mr. Higgs' opening remarks outlining the case for the defendant. He had not seen the statement prepared at my direction, after he foreshadowed his objection during Mr Higgs opening, until the morning of 5th December 2012. The case involved complexity and he had not had sufficient time to fully consider the content of the statement and its possible ramifications for the plaintiff's case; (b)As the case had been expedited because of the plaintiff's terminal illness, and possible imminent demise, an adjournment, which might ordinarily be a remedy in such circumstances, was not practicable. The effect of an adjournment would be devastating to the plaintiff personally, and possibly to his claim for damages; (c)No satisfactory explanation had been given for the late service of Prof. Borody's statement. Ordinarily in a matter in the Professional Negligence List witness statements are exchanged well before the hearing. However, I interpolate, in the present case, because of the order for expedition, the case has not been managed in accordance with the usual considerations. (d)As Prof. Borody was a treating specialist he was in a confidential relationship with the plaintiff. Permitting the defendant to call him breaches that confidence. 11As to the probative value of Prof Borody's evidence, the following points were made: (a) The statement has been prepared more than 13 years after Prof Borody ceased his therapeutic role in relation to the plaintiff. The better evidence in relation to what he did and why will be found in his contemporaneous records; (b) Connected with (a) is the idea that a statement prepared so late in the piece, which extends beyond material not articulated in the professor's notes, can only be a reconstruction of a self-serving nature; (c) These considerations really mean that the evidence of Prof. Borody is likely to be of such little weight that the unfair prejudice must outweigh its probative value.