Morocz v Marshman [2015] NSWSC 149

Supreme Court New South Wales

Medium Neutral Citation: Morocz v Marshman [2015] NSWSC 149 Hearing dates: 10 February 2015 Decision date: 06 March 2015 Jurisdiction: Common Law Before: Harrison J Decision: 1. I dismiss the application for the taking of evidence by video link except in the case of Drs O'Reilly and Banks if required. 2. I decline to order that the issues of liability and damages be heard separately. 3. I order that the costs of this application be the costs in the proceedings. Catchwords: MEDICAL NEGLIGENCE – evidence – expert evidence – reports – admissibility of expert reports – evidence by video link – whether order should be made in respect of experts whose reports are inadmissible – whether separate trial of damages and liability Cases Cited: Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Category: Procedural and other rulings Parties: Maria Morocz (Plaintiff) Dr David Marshman (Defendant) Representation: Counsel: J Anderson (Plaintiff) K Burke (Defendant)

Solicitors: Terence Stern (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2010/32578 Publication restriction: Nil

Judgment 1. HIS HONOUR: This application and these proceedings relevantly raise two principal liability issues: 1. Of what risks, if any, associated with the performance by the defendant of a surgical procedure upon the plaintiff known as a bilateral endoscopic thoracic sympathectomy was the plaintiff not properly or adequately warned by the defendant? That question necessarily involves the anterior determination of precisely what were the risks associated with the performance of that surgical procedure. 2. From what conditions, if any, does the plaintiff now suffer that were legally caused by the post-operative manifestation of those risks of undergoing a bilateral endoscopic thoracic sympathectomy of which the plaintiff was not properly or adequately warned by the defendant? 1. The first question requires an understanding of what risks a surgeon in the position of the defendant should have drawn to the plaintiff's attention prior to the operation in order to enable her to make informed decisions about the surgery that was contemplated, including the decision about whether or not to undertake the procedure at all. The second question involves a comparison between the plaintiff's preoperative condition and her current condition in order to assess or determine whether or not any injuries or disabilities from which she now allegedly suffers correspond to the manifestation of surgical risks about which she should have been warned but allegedly was not. 2. The plaintiff has sought an order that certain of the expert witnesses upon whose evidence she relies be permitted to give their evidence by video link. The witnesses in question are located either interstate or overseas and it is uncontroversial that a significant saving of costs would attend taking their evidence in that way. 3. The defendant has raised a preliminary objection to the order upon the basis that the witnesses concerned should not be permitted to give evidence at all for the reason that they are not qualified to give expert evidence, or have offered opinions outside their professed area of expertise, or that their evidence is irrelevant to any issue in the proceedings. There is a relationship in some cases between or among those complaints.