Harris v Bellemore (No 6) [2013] NSWSC 1859

Supreme Court New South Wales

Medium Neutral Citation: Harris v Bellemore (No 6) [2013] NSWSC 1859 Hearing dates: 9, 10, 11 December 2013 Decision date: 12 December 2013 Before: McCallum J Decision: Further expert medical reports of Mr Simonis and Prof Saleh admitted; further reports of Ms Tchan and Dr Barold rejected. Catchwords: PROCEDURE - where proceedings remitted after an appeal for determination of specific questions - scope of further evidence that should be admitted Legislation Cited: Civil Procedure Act 2005 Cases Cited: Fitzgibbon v The Waterways Authority [2003] NSWCA 294 Harris v Bellemore [2010] NSWSC 176 Harris v Bellemore [2011] NSWCA 196 Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010) Harris v Bellemore (No 3) (Supreme Court of New South Wales, McCallum J, unreported, 13 August 2010) Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 Category: Interlocutory applications Parties: Paul Harris (plaintiff) Michael Bellemore (defendant) Representation: Counsel: B Toomey QC, E Romaniuk SC (plaintiff) S Donaldson SC, EC Muston (defendant) Solicitors: TD Kelly & Co (plaintiff) Blake Dawson (defendant) File Number(s): 2010/092491 Publication restriction: None

Judgment 1HER HONOUR: This is an action for medical negligence brought by Mr Paul Harris against an orthopaedic surgeon, Dr Michael Bellemore. The claim arises out of limb-lengthening surgery undertaken by Dr Bellemore to eliminate a discrepancy between the lengths of Mr Harris's legs (due to childhood motor vehicle accidents) but also to make Mr Harris taller. The treatment sought by Mr Harris was ambitious. The surgery suffered a number of complications resulting in ongoing disabilities but there was a substantial dispute as to the extent to which Mr Harris's ongoing complaints were attributable to negligence on the part of Dr Bellemore. 2Mr Harris's claim was determined by me at first instance: Harris v Bellemore [2010] NSWSC 176. I awarded part but not all of the damages claimed. One of the findings I made against Mr Harris related to a condition known as a procurvatum or bowing of the right leg. That was a condition which existed to a minimal degree before Mr Harris first approached Dr Bellemore but which, according to the evidence, appears to have worsened significantly during the limb-lengthening treatment. I held that the pleadings did not include any allegation against Dr Bellemore of negligent failure to address that condition. Accordingly, I did not determine that claim. 3An appeal brought by Mr Harris to the Court of Appeal was allowed in part: Harris v Bellemore [2011] NSWCA 196. The only issue on which Mr Harris succeeded was the procurvatum claim. The Court of Appeal held that, notwithstanding the state of the pleadings, the procurvatum claim was sufficiently raised and that I ought to have determined it. The orders of the Court of Appeal included an order remitting the proceedings to me to determine four questions specified in the order. It will be necessary to return to consider the form of the orders made. 4Following a series of interlocutory applications and further appeals, the proceedings have been listed before me this week to determine the questions remitted. An issue has arisen as to the scope of the evidence that should be admitted for that purpose. The plaintiff has tendered four expert medical reports. The defendant has objected to the whole of that material. This judgment determines the defendant's objections. However, to characterise this as a judgment giving rulings on evidence belies the complexity of the issues brought forward for my determination. Some explanation is required. 5My principal judgment concluded that the plaintiff was entitled to an award of damages but did not quantify the sum in which judgment would be entered. That was partly because the parties had invited me to direct them to undertake the necessary calculations following publication of my findings and partly because I considered it necessary to afford the parties an opportunity to address me on a small number of further issues: at [378]. I subsequently published a further judgment determining those issues (Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010)). On that date, I directed the parties to bring in short minutes of orders for the entry of judgment calculated in accordance with both judgments. Judgment was entered two days later, on 24 June 2010, in the amount of $652,892.95. 6The Court of Appeal did not set aside that judgment. The orders of the Court were: (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. 7The orders set aside by order 2 of the Court of Appeal were orders as to costs made by me in a further separate judgment: Harris v Bellemore (No 3) (Supreme Court of New South Wales, McCallum J, unreported, 13 August 2010). 8As already noted, the order remitting the proceedings to me reflected the plaintiff's only success in the appeal. According to the judgment at [14], three grounds were pressed in the appeal, as follows: 14 By the present appeal the appellant contends that the judgment in his favour was inadequate as a result of the primary judge erring in: (a) Concluding that the appellant had not pleaded a claim for damages relating to his procurvatum deformity, with the result that the appellant was not entitled to damages related to that deformity, and finding that in any event the appellant's procurvatum deformity did "not appear to have any functional significance for [the appellant]" (Judgment [267]). (b) Rejecting the appellant's tender of a report dated 25 May 2009 of Mr Simonis, an orthopaedic surgeon, concerning the appellant's current condition; and (c) Rejecting the appellant's claim for damages based upon his alleged psychiatric condition. 9The Court rejected ground (b) concerning my refusal to admit the report of Mr Simonis dated 25 May 2009 (at [112]). The Court also rejected ground (c) concerning Mr Harris's claim for damages based on his alleged psychiatric condition (at [144]). 10However, the Court held that I was in error in rejecting Mr Harris's procurvatum claim on the basis that it had not been pleaded (at [92]). 11The Court's reasons for reaching that conclusion included its assessment that, notwithstanding some criticisms of the pleading, each of the elements of a claim of negligent failure to correct the procurvatum deformity was alleged in the final version of the pleading (the second further amended statement of claim) (at [86]). The Court also noted that the procurvatum had been referred to in opening by the solicitor for Mr Harris and in expert reports, Mr Harris's cross-examination of Dr Bellemore, the concurrent evidence of the experts on liability, the concurrent evidence of the experts on current condition and in closing addresses. 12Accordingly, the burden of the decision of the Court of Appeal was that an issue which I understood (and held) had not been raised for my determination during the course of a lengthy and complex trial had in fact been sufficiently raised and should have been determined. 13However, the Court has not remitted that claim in its entirety. The orders of the Court reflect the breadth and flexibility of its power under s 75A(10) of the Supreme Court Act 1970. In order to understand the scope of the task remitted, it is necessary to pay heed to the Court's reasons for articulating the four specific questions contained in the remitter order, especially at paragraphs [93] to [101] of the judgment. In those paragraphs of the judgment, the Court has given me very specific direction as to the issues for my consideration. It is appropriate to set out part of the relevant passage in full (at [94] to [97], emphasis added): 94 In these circumstances the procurvatum claim must be remitted to the primary judge for determination. This should be upon the basis that the only issues in respect of the claim not yet resolved in favour of the appellant are the following: (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? 95 I have excepted the performance of the second osteotomy in question (c) because the appellant's pleading alleged only two physical consequences of the second osteotomy and neither was the appellant's procurvatum condition. 96 It is clear that the answer to question (c) is at least 70 per cent in light of the concurrent oral evidence of the liability experts (see [43] above). On its face that evidence suggested that 20 per cent of the appellant's procurvatum was caused by the second osteotomy (the outstanding 10 per cent representing a pre-existing condition of the appellant). However I suspect that what the experts meant by that evidence was that that 20 per cent was caused by the absence of hinges on the frame used after the second osteotomy. This is suggested by Mr Kossmann's evidence referred to at [49] above. On this basis the appellant would not be precluded by his pleading from claiming in respect of this 20 per cent. 97 It will be for the primary judge to decide in her discretion whether the parties should be allowed to call evidence on this or any other questions remitted to her. 14In paragraphs [98] to [101], the Court proceeded to find, in effect, that Dr Bellemore had admitted that his failure to use hinges on the frame affixed to Mr Harris's leg during the limb-lengthening treatment was an admission that related or extended to a claim relating to the procurvatum condition. I have already indicated in an earlier judgment that that was not my understanding during the trial but in any event I am bound by the Court's determination of that issue. 15Accordingly, whilst remitting the proceedings to me for me to determine the claim I did not determine, the Court has not remitted all of the issues raised by that claim. As occurred in the proceedings in the Court of Appeal in Fitzgibbon v The Waterways Authority [2003] NSWCA 294, the Court has evidently seen fit in this case to achieve finality on one aspect of the claim that was not determined at first instance (whether it was negligent not to address the procurvatum condition) and to remit other aspects of that claim to me with further direction as to how those issues should be determined. 16The decision of the Court of Appeal in Fitzgibbon was of course overturned by the High Court, but not on the basis that it was beyond power. The High Court was unanimous as to the width of the power but was divided as to the appropriateness of the manner of its exercise, the majority holding that the discretion of the Court of Appeal miscarried: Waterways Authority v Fitzgibbon [2005] HCA 57 at [15] and [20] per Gleeson CJ; McHugh, Gummow and Hayne JJ agreeing at [26], [28] and [128]; and see [119], [121-122] per Kirby and Heydon JJ (in dissent). 17A difference between Fitzgibbon and this case is that, in Fitzgibbon, the judgment entered at first instance was set aside. As already noted, the Court of Appeal in the present case did not set aside the judgment entered on 24 June 2013. Thus, on the issues on which the judgment at first instance attained finality, the Court of Appeal preserved that finality. 18The remittal of the proceedings to determine further questions in circumstances where the judgment entered at first instance has not been set aside has generated extensive debate as to the proper approach to the hearing of the questions remitted. As may be seen from the judgment in the Court of Appeal at [97] (set out above), the Court left to me the discretion "whether the parties should be allowed to call evidence" on any of the questions remitted to me. The terms of that ruling contemplate the possibility, within the proper exercise of that discretion, that no further evidence should be allowed. 19By notice of motion dated 24 April 2012, Mr Harris sought leave to adduce further evidence. A separate interlocutory application and a further appeal delayed the hearing of that motion until 7 June 2013. I determined the application on 14 June 2013: see Harris v Bellemore (No 5) [2013] NSWSC 770. The application was confined to two medical reports dated March 2012. However, the parties did not seek specific rulings in respect of those reports. Rather, what was sought was a ruling as to the approach that would be adopted at the hearing. In hindsight, a ruling on that limited basis was unhelpful. 20In response to the application as argued, I gave the following ruling (at [39]): In all the circumstances, I do not think Mr Harris should be allowed to expand upon the evidence that was or could have been adduced at the trial as to the underlying procurvatum condition. As noted by Mr Donaldson, it is not suggested that the procurvatum condition (that is, the degree of bowing in the bone) has changed since the hearing before me. To the extent that its impact on the plaintiff's physical condition has decreased, increased or remained the same, the parties should have leave to call evidence as to those matters. However, as the Court of Appeal has held, the condition itself was an issue in the trial and was addressed in the evidence. Mr Toomey did not seek to identify any deficiency in the evidence already lead or suggest that there would be any injustice if further evidence as to the procurvatum condition were not allowed. 21Mr Harris did not seek leave to appeal against that decision. However, at the outset of the hearing this week, Mr Toomey sought to address me further as to its correctness. He also read two affidavits directed to the concluding remarks of the passage set out above, with a view to establishing that the evidence already lead was deficient because the plaintiff's presentation of his claim at first instance was hampered by a number of circumstances. 22In summary, the plaintiff says that my determination that the evidence at this further hearing can be confined in any way is simply wrong. Mr Toomey submitted that this is a new trial and that there is no warrant in authority or in the provisions of the Civil Procedure Act 2005 for truncating the evidence in any respect. The plaintiff says, further, that I should now consider evidence not brought forward when I determined the notice of motion dated 24 April 2012 as to why the expert evidence set out in the two reports of March 2012 was not led at trial. 23That course of events (particularly the plaintiff's decision not to seek leave to appeal against my decision in Harris v Bellemore (No 5) or even to flag his intention to canvass that ruling at the outset of the hearing) has in turn complicated my assessment of the dictates of justice. The defendant says that he has come to court unprepared to meet the further evidence, having assumed that, in accordance with my ruling, any evidence properly characterised as further evidence (as opposed to fresh evidence updating the plaintiff's present condition) would be excluded. It is in that difficult context that the defendant's objections stand to be determined. 24My consideration of the further submissions put by Mr Toomey at the outset of the hearing this week canvassing the ruling I gave in Harris v Bellemore (No 5) have not persuaded me that my determination in that decision was wrong. Apart from any other consideration, I am bound by the terms of the judgment of the Court of Appeal. I do not accept, as submitted by Mr Toomey, that the effect of the Court's decision is that there was "no trial". The orders of the Court have not set the matter "at large again" (cf Pateman v Higgin (1957) 97 CLR 521 at 527, cited in Fitzgibbon at [119] per Kirby and Heydon JJ). Further, the Court of Appeal expressly reserved to me (at [97]) the discretion as to what evidence should be admitted in respect of the matters that remain to be determined, apparently including a discretion not to allow any further evidence at all. Whilst the position is not entirely clear to me, I do not think the Court apprehended that I would be obliged to conduct a new trial of the procurvatum claim at large. 25Mr Toomey submitted that there was error in my having sourced my authority to exclude evidence in the provisions of the Civil Procedure Act. That was not my perception of the source of my authority. The authority to admit or exclude evidence at this stage of the trial derives from the decision of the Court of Appeal at [97], by which I am bound. I do not think it was an error to regard the proper exercise of that authority as being informed by the provisions of the Civil Procedure Act. 26That leaves the more difficult question as to what fairness requires at this stage. My determination in Harris v Bellemore (No 5) was subject to two important qualifications, one stated in the judgment and one which applies in any trial. The first is that, in the judgment at [41], I acknowledged that there may be some measure of overlap between evidence which could have been called at the trial and evidence properly regarded as updating evidence. My judgment given in Harris v Bellemore (No 5) did not purport to pre-empt rulings as to admissibility. 27Secondly, the overriding duty of a trial judge always is to ensure a fair trial. As already noted, Mr Toomey has read two further affidavits addressing the circumstances of the first trial before me. The first was an affidavit sworn by the plaintiff sworn 12 November 2013. The second was an affidavit sworn by Mr Kelly, the plaintiff's solicitor, who conducted the first trial. 28In some respects, Mr Kelly's affidavit bears out the impression formed by me (and evidently by those representing Dr Bellemore) that the procurvatum claim was barely lurking in the background at the first trial. Be that as it may, the simple fact is that the Court of Appeal has found error in my failure to determine that claim and it now falls to be determined at a later point in time. What is the fairest course in those circumstances? Dr Bellemore perceives unfairness in affording Mr Harris a second bite at the forensic cherry. Mr Harris perceives unfairness in having his claim determined within the forensic constraints of the earlier trial which he would portray as a David and Goliath battle. 29In determining this difficult issue, I have given close attention to the content of the further medical reports sought to be tendered. Only two of those reports were put before me on the application for leave to adduce further evidence determined in Harris v Bellemore (No 5). They are the reports of Mr Robert Simonis dated 21 March 2012 and Professor Michael Saleh dated 23 March 2012. Each of those doctors gave evidence at the first trial. 30Dealing first with the report of Mr Simonis, the first thing to be observed is that he does address the issue of a comparison between Mr Harris' present complaints and those he had when Mr Simonis saw him in May 2009. To that extent, the report provides fresh evidence which the defendant should have anticipated would be admitted in accordance with my earlier ruling. Mr Donaldson submitted on behalf of Dr Bellemore that the report goes further and expands upon matters which should have been put at the first trial. An example is paragraph 13.10 of the report, which states: The deterioration is a result of (a) increasing muscle fatigue, and (b) increasing osteoarthritis in the right knee joint. Both caused by the procurvatum of the femur. Both going to get considerably worse over the next few years. 31That passage provides a good illustration of the difficulty of excluding any part of the report on the basis that it is further evidence that could have been led in the first trial (rather than being fresh evidence). The opinion is directed to deterioration in Mr Harris's condition since the first trial, a matter which the parties agree may properly be the subject of evidence in this further trial. In addressing the cause of the deterioration, the doctor probably improves upon the evidence given at the first trial but the exposition of his opinion on that issue is also necessary to an understanding of the fresh evidence. That complexity permeates the whole report. 32After a careful consideration of the report as a whole, I have concluded that it should be admitted. 33That raises a further complication. In order to make sense of the report of 21 March 2012, one would ordinarily admit the earlier report dated 24 May 2009. As already noted, I rejected that report at the first trial, since the plaintiff had to demonstrate exceptional circumstances. I held that he had failed to do so. The Court of Appeal upheld my ruling on that issue. The defendant says that the report should not now be allowed. For reasons I do not understand, it was not included in the material served in support of the notice of motion I determined on 14 June 2013 and to that extent it takes the defendant by surprise. Conversely, however, I am unable to see anything in the report that creates any further difficulty for the defendant than that created by the report of 21 March 2012. Accordingly, whilst I accept that the defendant is entitled to feel frustrated by this course of events, I have determined that both reports should now be admitted. 34The report of Professor Saleh also addresses the plaintiff's current condition and, as with the report of Mr Simonis, probably improves upon the explanation of the extent to which the procurvatum contributes to that condition. I have found the determination of this issue extremely difficult, since I have concluded that, whichever conclusion I reach, I will inflict a measure of unfairness on one party or the other. All I can do in the circumstances is to balance those acutely competing considerations. I have ultimately concluded that the greater injustice would be to exclude the report. 35The affidavit sworn by Mr Kelly may be regarded as in the nature of a plea of confession and avoidance. In substance he says that, for a variety of relatively compelling reasons, his attention was not focused on the procurvatum claim during the first hearing. I acknowledge that Dr Bellemore will be left with a sense of grievance at being exposed to face a claim better prepared the second time around. However, I do think that unfairness is outweighed by the prospect of preventing Mr Harris from the benefit of a careful explanation of the extent to which his current symptoms are caused by the procurvatum condition from a man who is undoubtedly a leading expert in this specialised field. The report is not directed to any new symptom or condition that was not addressed at the first trial. Rather, what it provides is a better explanation of issues that were perhaps given inadequate attention in the way in which the claim was first presented. With some reluctance, I have concluded that the fairest result, on balance, is for the whole of the report to be admitted. 36The third report is a report of Heather Tchan dated 18 August 2013. Ms Tchan gave evidence at the first trial. Her first report stated that Mr Harris required eight hours of domestic care a week. Her further report states that, due to his deterioration, he now requires eight and a half hours per week. The report makes no attempt, however, to differentiate between the impact of the procurvatum condition and the many other complications of Mr Harris's presentation. I think ultimately Mr Toomey accepted that to be the case, and pressed its tender only faintly. In my view, for the reasons stated in Harris v Bellemore (No 5), that report should be rejected. 37Finally, the plaintiff tenders a report of Dr Barold, an expert in occupational medicine, dated 28 October 2013. That report also suffers from the vice of wholly failing to address the discrete issue raised for my determination in this further hearing, namely, any further damages that Mr Harris should be awarded by reason of the procurvatum condition. Indeed, the report states: Mr Harris's condition is most complex and there is no clear or simple method of determining the degree to which the procurvatum angulation, and its consequences, is attributable to his present condition. 38Dr Barold probably meant to state that proposition the other around. In any event, I have concluded that, for the reasons stated in Harris v Bellemore (No 5), Dr Barold's report should be excluded.