Supreme Court New South Wales Medium Neutral Citation: Miller v Jones (No 4) [2019] NSWSC 1447 Hearing dates: 23 October 2019 Date of orders: 23 October 2019 Decision date: 23 October 2019 Jurisdiction: Common Law Before: Bellew J Decision: See [6] Catchwords: EVIDENCE – Admissibility - Whether evidence expressed an expert opinion or whether it was properly viewed as an statement of fact – No point of principle Category: Procedural and other rulings Parties: Lucas Anthony Miller – Plaintiff Dr David Jones - Defendant Representation: Counsel: B Dooley SC and J Lee – Plaintiff A Bartley SC and J Layani-Ellis – Defendant Solicitors: Carroll O'Dea Lawyers – Plaintiff Ken Cush & Associates – Defendant File Number(s): 2015/124172 Publication restriction: Nil Judgment – ex tempore (revised) 1. In these proceedings the plaintiff brings an action in negligence against the defendant arising out of a surgical procedure which was performed on 3 January 2011. That surgery came about as a consequence of the plaintiff suffering an injury to the anterior cruciate ligament of his right knee whilst playing professional Rugby League in France on 6 December 2010. 2. It is common ground that following the incident, the plaintiff consulted the defendant who carried out a reconstruction of his anterior cruciate ligament on 3 January 2011. It is the plaintiff's case that the defendant was negligent in carrying out that reconstruction by, amongst other things, performing it in such a way that the anterior cruciate ligament graft was "highly vertical in the front of the notch and completely in the wrong position." 3. In his evidentiary statement [1] the defendant stated (inter alia) the following: "I used a transtibial approach and drilled the femoral tunnel at 10‑11 o'clock." 1. That passage has been objected to by senior counsel for the plaintiff, on the basis that it expresses an opinion, rather than a statement of fact. It is, as I have indicated, the plaintiff's case that the graft was inserted at a position which was very much towards the vertical, and which might be described as a position of more 12 o'clock, than 10 to 11 o'clock, and that this was reflective of a lack of care on the part of the defendant. 2. In my view, the statement made by the defendant is a statement of what he did. It does not, in my view, encroach into the area of expression of professional opinion. The defendant has simply stated that he drilled the femoral tunnel in a particular position, by reference to a clock. 3. Whether he did or did not, what the consequences may or may not have been, and whether any of these matters reflect a lack of care, are all factual issues I have to determine. However, for the reasons that I have given, the statement in question is an assertion of fact, which is both relevant and admissible. ********** Endnote 1. Exhibit A, p.124 at [14] of the defendant's statement. 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: 27 February 2020