[2011] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Sydney		No S268 of 2011

B e t w e e n -

PAUL HARRIS

Applicant

and

MICHAEL BELLEMORE

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 2.50 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR E.G. ROMANIUK, for the applicant.  (instructed by T D Kelly & Co)

MR S.R. DONALDSON, SC:   May it please the Court, I appear with my learned friend, MR E.C. MUSTON, for the respondent.  (instructed by Blake Dawson)

FRENCH CJ:   Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honours.  Your Honours, this was a case with complex facts which went for 29 days and the trial judge’s decision was partly overturned in the Court of Appeal.  Perhaps I can just shortly state what did happen.  The applicant was a professional engineer.  As a boy he had two accidents which resulted in him having one leg shorter than the other.  He was a twin and it greatly preyed on his psyche, consciousness, his peace of mind that he was different from his brother.  His brother was athletic and, of course, uninjured.  He became aware in his late 20s of a process called an Ilizarov process which ‑ ‑ ‑

FRENCH CJ:   Sorry, Mr Toomey.  I do not want you to use up precious time unnecessarily.  I think we are both pretty familiar with the facts.

MR TOOMEY:   May it please your Honours.

FRENCH CJ:   So the first point is whether or not the matter was wrongly remitted to the primary judge.

MR TOOMEY:   Can I leave that to the end, your Honour, because an important point, we say, is what we characterise as a profound failure of process in the decision on whether the psychiatric injury was to be attributed to the surgery.  Can I elucidate it in this way.  The applicant, late in the case after the respondent had admitted liability for all that arose out of the second osteotomy, put on a pleading which has caused a lot of trouble and which said, in effect, well, if it had not been for the second osteotomy he would not have any psychiatric injury.

FRENCH CJ:   It did not pick up the procurvatum? 

MR TOOMEY:   No, it did not.

FRENCH CJ:   That is the problem that you are facing, I think, is it not?

MR TOOMEY:   Perhaps, your Honour, but it is met, we say, by the failure of process to which I wish to take your Honours.  The case therefore proceeded towards the end of the case when it got to the expert’s conclaves and such like on the basis that it had to be determined what was caused by the second osteotomy and what was caused by the first.  The questions left to the psychiatrists included a question 2a, which is to be found at 153 of the application book in the judgment of the Court of Appeal, and your Honours will see that that question is posed on an assumption:

that the plaintiff did not undergo the second osteotomy [but] still suffered all of the following outcomes –

The following outcomes, with the exclusion of the procurvatum, were set out and her Honour made individual findings on them, to which I will take you back.  At page 87 of the application book, paragraph 308, her Honour expressed the foundation of her finding in favour of the defendant on this point:

Dr Brown –

who was the respondent’s forensic psychiatrist –

expressed the opinion that Mr Harris would have developed the same psychiatric condition even if his femoral artery had not been severed.  She based that opinion on her assessment of the distress experienced by Mr Harris as a result of the other adverse outcomes listed in points (c) – (g).

So what Dr Brown said was, the second osteotomy in which the femoral artery was severed had nothing to do with the psychiatric condition because all these adverse outcomes he would have suffered in any event, therefore, there was no causative effect of the severance of the femoral artery.  Your Honours, the problem about that is that her Honour, between paragraphs 244 and 257 of the very same judgment, had made findings that to a greater or lesser extent five of those conditions, (c) to (g), were partly caused by the second osteotomy.  

	We have collected them, your Honours, in the notes to paragraph 24 of our submissions on page 178 of the book, and we said the legal basis for that finding would have to be that the (c) to (g) matters did not arise from the negligence and were causative of the psychiatric condition so that the applicant would have suffered the psychiatric condition in any event.  But that basis does not exist because an analysis of the trial judge’s findings on the causation of (c) to (g) reveals that some part of each of those conditions was or ought to have been found to flow from the negligence in the second osteotomy.

BELL J:   Where does the Court of Appeal deal with this argument?

MR TOOMEY:   It does not, your Honour, because it was not fully developed in the Court of Appeal.  But, may I say, there were strong arguments, and I would say, something like two‑thirds of the argument in the Court of Appeal was directed towards the applicant’s argument that the trial judge was in error in excluding the psychiatric condition from the damages.  Can I say this in my own defence, your Honours.  The big point in the Court of Appeal, the first point in the Court of Appeal, was the procurvatum which had been entirely left out of the case.  Her Honour had excluded it from the case on the basis that it had not been pleaded.  It was found, of course, by the Court of Appeal, ultimately, that that was wrong, it had been pleaded, but our argument was that because the procurvatum had been excluded from consideration in the case, that the decision as to whether the psychiatric condition arose from it had not been properly dealt with, and we maintain that argument.

	Can I hand to your Honours a document which shows the extent of the procurvatum?  I have told my learned friend I am going to do this.  I understand he has no objection.  Your Honours, this is an agreed document produced by the orthopaedic specialists for the applicant and the respondent and your Honours will see the femur coming down from top right towards the bottom left corner in a straight line and then a deviation of 18 degrees.  That deviation is the deviation which arose because, the plaintiff says, in the distraction process necessary for the lengthening of the leg, the bone was not held up by hinges in the basket frame which would have allowed it to be tilted up and so gravity brought it down.  There was evidence at the trial that this is a serious disability.  Indeed, the Court of Appeal said at paragraph 93 of their judgment at 146 of the book at line 15:

there is arguably a basis in the evidence for a finding that the appellant’s procurvatum condition constitutes a serious disability.

Our primary argument in the Court of Appeal was, look, it is plain this is serious, it was never taken into account.  The Court of Appeal have found, indeed, that it is arguably a serious disability but themselves did not take it into account.  In any event, I am excusing myself by saying that we were not focused on that particular aspect, but when the Court of Appeal decided against us on the procurvatum which we thought plainly ought to have been taken into account on the assessment of whether the psychiatric condition was attributable to the accident, then we developed this argument.

	Your Honours, can I just develop this argument.  As I say, her Honour has committed what we would say is a serious breach of process.  She has determined the question of whether the plaintiff’s psychiatric condition arose out of the negligence of the doctor on the basis of the answers to the question, which I took your Honours to, page 153, without appreciating that that question was stated on an assumption:

Assuming that the plaintiff did not undergo the second osteotomy and still suffered all of the following outcomes –

That was the assumption.  Her Honour said at paragraph 314 of the primary judgment, page 89:

I have not found this issue easy to resolve.  In the end, I am not satisfied that Mr Harris’ psychiatric disability was caused or materially contributed to by Dr Bellemore’s breach . . . In my view, the opinion expressed by Dr Brown (that Mr Harris would have developed the same psychiatric condition even if his femoral artery had not been severed) accords with common sense –

But Dr Brown did not say that.  Dr Brown said assuming that the second osteotomy had not been performed and the applicant was left with those conditions.  The findings by her Honour herself negatived that assumption.  It is a case in which the assumption has become the fact.  So the applicant is left in a position where her Honour has made a decision that the second osteotomy in fact did contribute to those findings and yet has accepted Dr Brown’s opinion that they did not on the assumption rather than the facts her Honour had herself found.  An example, your Honour, is to be found at page 70 of the book under the subheading “Scarring”.  This was one of the items set out in the expert’s question:

A separate matter addressed by the liability experts was scarring.  It was noted on behalf of Dr Bellemore that only Mr Simonis from that group examined Mr Harris.  The other liability experts accordingly offered no view about scarring.  Mr Simonis attributed 20% of Mr Harris’ current scarring to the vascular repair carried out after Dr Bellemore cut the artery during the second osteotomy.  Separately, he attributed 50% of Mr Harris’ scarring to the leg lengthening procedures, of which he attributed half to the second osteotomy.

The result being that 20 per cent is the result of the vascular repair caused by the botching of the second operation and 25 per cent, half the 50 per cent, is also attributable to that operation.  That is, 45 per cent of the scarring, which the next paragraph acknowledges that Dr Bellemore acknowledged had probably contributed to Mr Harris’ psychiatric problems.

BELL J:   One difficulty, when this point was not developed in this way in the Court of Appeal – and I understand the prime point was the procurvatum one, but if you go to application book 88 at 312, there is a discussion about Dr Brown’s report of 29 April 2009, the suggestion that views expressed in that differed from the final view that he reached at a joint conference and the like.  You are now presenting us with isolated aspects of factual findings in circumstances where none of these matters were canvassed in the Court of Appeal ‑ ‑ ‑

MR TOOMEY:   Your Honour, can I say this.  I do appreciate that difficulty, but we say in this instance, perhaps unusually, it is compartmentalised because her Honour made the findings herself and then allowed an assumption to rule the decision, which assumption was wrong on the findings she herself had made.  Your Honours, can I say this.  The applicant was a professional engineer.  The major contribution to his inability to work is his psychiatric condition which her Honour found was a chronic moderate major depressive disorder.  We are not talking about something which just makes things uncomfortable.  It is a chronic moderate major depressive disorder.  I see the dichotomy between a moderate and a major depressive disorder, but that is the tag, your Honour.  It is a chronic moderate major depressive disorder and it was, without question, the single most important question in the determination of the applicant’s damages.

FRENCH CJ:   Just to make sure I understand the proposition, is the argument you are advancing before us, which is not run in the Court of Appeal on causation, was that the primary judge made findings inconsistent with the assumption upon which the psychiatrist’s evidence in answer to question 2a had been based?

MR TOOMEY:   That is correct, your Honour, and then depended on the psychiatrist’s evidence on the assumption to knock out the ‑ ‑ ‑

FRENCH CJ:   Causal connection.

MR TOOMEY:   Yes.  There is one other matter I should draw to your Honours’ attention and that is that Dr Brown – can I trespass on my already stretched friendship to ask your Honours to have a look at one page of transcript.

FRENCH CJ:   What Dr Brown did was to take a number of sequelae, which you say are sequelae of the second osteotomy ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour – well, to a degree, your Honour.

FRENCH CJ:    ‑ ‑ ‑and then said, now, let us imagine they had not been caused by the second osteotomy ‑ ‑ ‑

MR TOOMEY:   They would have been there anyway.

FRENCH CJ:   Did that have any impact on the psychiatric condition?

MR TOOMEY:   Yes.

FRENCH CJ:   And the answer to that is in the negative?

MR TOOMEY:   Yes.

FRENCH CJ:   Now, the primary judge finds that these things were the result of the second osteotomy.

MR TOOMEY:   They were implicated at least.

FRENCH CJ:   Yes.  Why cannot the primary judge then go back to the conclusion about those sequelae offered by the psychiatrist?  Why is there an inconsistency there?

MR TOOMEY:   Because the psychiatrist has made her findings on the basis that there is no contribution from the second osteotomy, whereas her Honour has made individual findings in respect of those aspects in which she finds there is a contribution from the second osteotomy.

FRENCH CJ:   To those physical sequelae?

MR TOOMEY:   That is correct.

FRENCH CJ:   But the question is whether those physical things, be they sequelae or the osteotomy or somehow spontaneously arising or caused by something else, would not have contributed to the psychiatric condition.

MR TOOMEY:   I am sorry, I am not quite ‑ ‑ ‑

FRENCH CJ:   I am trying to understand the argument.

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   Is not the psychiatrist modus operandi to say let us take the counterfactual.  We have these physical sequelae.  We will imagine they did not come from the second osteotomy and then ask ourselves the question, would they have contributed to the psychiatric condition?

MR TOOMEY:   No, not contributed, with respect, your Honour.

FRENCH CJ:   Or caused.

MR TOOMEY:   It had to be caused because the second osteotomy was excluded and it was said if the second osteotomy did not happen and he had these sequelae ‑ ‑ ‑

FRENCH CJ:   But what does it matter, in a sense, whether they are caused by the second osteotomy or not?  Is not the important question whether those physical problems, as it were, contributed to or caused the psychiatric condition however they themselves were caused?

MR TOOMEY:   Your Honour, except that the learned trial judge accepted Dr Brown’s evidence on the assumptive question, which was not the fact, but on the assumption as meaning that the applicant’s psychiatric condition had nothing to do with the second osteotomy, liability for which had been admitted, and therefore ‑ ‑ ‑

FRENCH CJ:   Liability for negligence in relation to the conduct by the cutting of the femoral artery.

MR TOOMEY:   I am sorry, your Honour is quite right, yes.

FRENCH CJ:   I am just wondering, you have these findings of fact by the judge which coincide with the assumptions upon which the – with the sequelae which were being addressed by the psychiatrist.  The only point of difference is what caused them, but the important question is what did they cause?

MR TOOMEY:   If your Honour looks at paragraph 314, you will see the use that ‑ ‑ ‑

FRENCH CJ:   I fear we may be at cross‑purposes.  That is why I want to make sure I am absolutely clear on your argument.

MR TOOMEY:   With respect, I take what your Honour – your Honour, the joint finding of the orthopaedic surgeons in the case was that the procurvatum injury was caused – 10 per cent preceded any injury, 70 per cent arose from the first treatment where there were no hinges on the basket frame and 20 per cent arose from the second osteotomy.  So the suggestion which permeates the Court of Appeal’s findings that the procurvatum was not available in respect of the psychiatric injury, was in any event wrong because there was a material ‑ ‑ ‑

FRENCH CJ:   That is the first point.

MR TOOMEY:   That is the first point.  Can I take you then to the transcript question, and this I hope may meet your Honour the 
Chief Justice’s difficulty.  At letter G on 1133, Dr Brown in – this is in the conclave – said:

When I re-examined Mr Harris as most recently in February, 2009, he told me he was discomforted by some of his items in (c) to (g).

and those are the items we have just been talking about, your Honours –

He has told me on several occasions that he was self conscious about the scarring on his thigh and does not wear shorts as a result.  He also told me he was distressed about experiencing pain in his leg and that he also complained of tightness in the leg and being worried about the discolouration of the right foot as to whether that might mean the circulation was poor or might be damaged irretrievably.  Those issues were considered by me as current ones of concern to Mr Harris and I believe they have contributed to him maintaining a depressive disorder.

Dr Brown was presenting that on the basis of her opinion that the second osteotomy was excluded as a cause of those factors.  Once you included the second osteotomy as contributing to those factors and Dr Brown said those issues have contributed to him maintaining a depressive disorder, you had the direct evidence of Dr Brown as to the inclusion of the psychiatric condition, whereas her Honour used it to exclude the psychiatric condition.

FRENCH CJ:   Thank you, Mr Toomey.

MR TOOMEY:   Thank you, your Honours.  Your Honours, I see that I have got the red light.  Can I just say, the remitter point, if your Honours were disposed to give us leave, it would take about three minutes on an appeal, but the primary question is this.  This case is going back for a retrial anyway.  It has been sent back ‑ ‑ ‑

FRENCH CJ:   I understand that, yes.

MR TOOMEY:   What we say is that unless the psychiatric condition is included in the retrial, then the applicant will not have had his case properly considered.  May it please your Honours.

FRENCH CJ:   Thank you, Mr Toomey.  Yes, Mr Donaldson.

MR DONALDSON:   Can I deal at the outset with the proposition that has been just put, that some part of the procurvatum condition which was so controversially before the Court of Appeal was caused by the second osteotomy.  That was not the applicant’s position before the Court of Appeal.  If your Honours go to page 138 of the application book, your Honours will see the passage from her Honour’s judgment at first instance dealing with the question of breakdown of what is described as a “flexion deformity”.  

	There were various components which led to, if I can put it in very simple terms, the allegation that the applicant’s foot when at rest – the foot of his right leg was behind the foot of his left leg – part of that, namely 70 per cent of that according to paragraph 240 cited at page 138, was due to the procurvatum and on no one’s case was the procurvatum caused by the second osteotomy.  20 per cent was caused by the second osteotomy and that there was what was described as a step deformity, and I think 10 per cent might have been an existing precondition, but certainly it has not been anyone’s case up until we have arrived at this Court that the procurvatum condition was caused by the second osteotomy.

	Insofar as my learned friend says there has been a failure of process and that on the basis of that failure of process it is appropriate that there be a grant of special leave, your Honours, in our submission that failure of process is entirely a consequence of the way that the plaintiff elected to plead and run its case at first instance and then, indeed, before the Court of Appeal.  As my learned friend very frankly concedes, the suggestion that there was error in her Honour’s findings regarding psychiatric injury on the basis that the conditions that had been hived off as the second part of question 2a addressed to the psychiatrists for the purpose of their joint report, were not taken into account by her Honour or by the Court of Appeal, it is because that is the way the plaintiff ran its case.  As is evident at page 152 of the application book, it is pleaded in very, very clear terms in paragraph 29A that:

All of the plaintiff’s psychological and/or psychiatric condition . . . has been caused by the surgery of 5 May 1997 and the effects upon the plaintiff of that surgery.

FRENCH CJ:   That is the first osteotomy we are talking about?

MR DONALDSON:   The second osteotomy.

FRENCH CJ:   The second, I am sorry, yes.

MR DONALDSON:   The second osteotomy which was carried out because of the need to correct a varus deformity which was in turn a consequence of the failure to fit hinges to the frame.  Just to pause there for a moment, the difficulty was – and there are passages in the judgment that reflect this – that during the distraction process, that is, opening up the gap in the fractured femur on a daily basis, there was pressure caused by muscle tissue and the like which could cause a bending of the bone while the leg was lengthened and it was said that those sorts of problems led to the need to have the second osteotomy which, of course, caused the femoral artery to be severed.  So we have got 29A at page 152 and 29B which put the case in connection with psychiatric injury on a very clear and definite basis.

BELL J:   That explains why question 2a was in the terms that it was?

MR DONALDSON:   Precisely.  Your Honours, if I can also add to that, page 134 of the application book.  Unfortunately, the pleading has been chopped up and spread all around the place in this judgment, but paragraph 7F of the second further amended statement of claim pleaded in clear terms what was said to be the consequences of the second osteotomy.

FRENCH CJ:   Sorry, can you give me that page number again?

MR DONALDSON:   Page 134, paragraph 7F which clearly pleads two consequences, none of which fall into the second half of the psychiatrist’s question.

FRENCH CJ:   There was a debate about whether the term “posterior translation” referred to procurvatum, I think.

MR DONALDSON:   I do not think there was serious debate about that.

FRENCH CJ:   There is a reference to it in the judgment.

MR DONALDSON:   I think it has been clearly held that it was a reference to the step deformity and I think his Honour Justice Macfarlan, with whom the other members of the Court of Appeal agreed, found that in clear terms.  We have got a pleaded case which identifies very clearly two consequences of the second osteotomy and a question put to the joint experts, or for the purpose of a joint expert’s report, which is formulated by the parties and provides the basis upon which the judge was to make her decision and it was reasonable for the judge to proceed on the basis, as she plainly did, that the plaintiff did not take the view that the items (a) to (g) were materially to any significant extent consequences of the second osteotomy because this question was framed, as his Honour Justice Macfarlan recognised, to enable the judge to arrive at an answer in relation to the debate between the parties about whether the matters referred to in the first part of the question, namely, those pleaded consequences of the second osteotomy, were the cause of the psychiatric injury or not.  If by proceeding on that basis to decide the case there has been a failure of process, then it is a failure of process arising from the way the parties chose to present the case, in particular, the way the plaintiff chose to present the case.

	There are some other factors that are important here too, and that is that her Honour did not base this decision in connection with psychiatric injury entirely upon Dr Brown’s evidence.  The trial judge preferred Dr Brown to the other psychiatrist, but, as the Court of Appeal have noted and endorsed, her Honour undertook a very careful and, with respect, comprehensive assessment and analysis of all of the factual circumstances underlying the plaintiff’s relevant history and what she saw to be factors both illustrating the nature and causes of his psychiatric condition.

	The complaint that is put now is that some of these items listed in (a) to (g) could be shown to have some relationship to the second osteotomy and that the judge recognised that.  The fact that the judge recognised that as part of this broader process of looking at all of the circumstances and deciding the difficult question that she had to decide, namely, whether causation had been established, does not, in our respectful submission, serve to demonstrate error on her part.  It serves to demonstrate that she was alive to the fact that there were, we would submit, minor contributions to these conditions that could be linked to the second osteotomy, but, nevertheless, arrived at a conclusion of fact, looking at all the circumstances, to the effect that the second osteotomy did not materially impact upon the plaintiff’s psychiatric condition.  So we say that for that reason as well, the trial judge’s assessment of this issue cannot fairly be described as a failure of process.

	The next point, and it is a significant one in the context of the application for special leave, is that, as your Honours have identified and as my learned friend frankly concedes, this issue was not ventilated before the Court of Appeal and for that reason, observations such as those made by my learned friend in connection with the percentage of scarring attributable to the second osteotomy have not been the subject of examination or consideration.  My learned friend went to page 70 of the application book, paragraph 248, which identifies that there were two assessments of scarring carried out by Mr Simonis.  He attributed 20 per cent to the vascular repair and separately, it is said, he attributed 50 per cent.  My understanding is that what the trial judge is there referring to is separate assessments which would properly be regarded as assessments of 20 and 25 per cent, not a combined assessment of 45 per cent, but these matters have never been litigated and it is not an appropriate forum in which to seek to do so now to seek a grant of special leave.

	The other issue, namely, whether or not the procurvatum condition ought to have been taken into account in the assessment of any link between the admitted breaches and the psychiatric injury, is rather more straightforward because, as the Court of Appeal found and is to be the subject of challenge, the procurvatum was not a pleaded consequence of the second osteotomy and the case was put very squarely on the basis that the second osteotomy was the and the only cause of the psychiatric condition.  So there is no real issue to be had about any failure of process in connection with that issue being the one that was run in the Court of Appeal.  Your Honours, I think we have addressed most of the matters in writing anyway, but they are our submissions in connection with whether or not there is a problem in the nature of – which it is really a complaint about the scope of the remitter.  

	The other complaint that is raised is as to the identity of the person to whom the issues have been remitted and, your Honours, as we have identified in our written submissions, it is very plain, in our submission, that it is inaccurate to describe the position as one in which the judge has heard evidence upon and determined the issues that have been remitted against the plaintiff already.  The relevant passages are at page 69 and then commencing at page 76 of the application book, but, in substance, what occurred was that, at paragraph 242 on page 69, the trial judge raised the question of whether or not the residual procurvatum was of any continuing clinical or functional significance and expressed the view that there was evidence to suggest that it was doubtful.  

	She then went on to consider the question, starting at page 76 of the application book, as to whether or not the procurvatum as a residual disability had been pleaded or whether or not it had been pleaded as one of the consequences for which the respondent was liable.  She said at paragraph 267, apparently referring back to 242, that it does not appear to have functional significance and that consideration of it may be of doubtful utility.  What she then went on to do was decide that it was not raised on the pleadings, so that the exercise which she had described as one being of doubtful utility was never undertaken.  

	Of course, the Court of Appeal was of a different view as to the pleading point and said she should have considered the question of whether the procurvatum is of continuing functional significance.  She has not, in our submission, decided that point in any relevant sense and her observations are no different to observations made in the course of argument as to what the current view is without having heard full argument on the question or finally determined it, and there is a wealth of authority for the proposition that that does not raise apprehended bias.  

	In the absence of circumstances giving rise to apprehended bias, there was, in our submission, no reason why the matter should not go back to the trial judge and, indeed, in the exercise of a power with a view to achieving the just, quick and cheap determination of the proceedings, there was obviously a very great deal to be said for the proposal that it should go back before her Honour.  They are our submissions, if the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Donaldson.  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, the Court of Appeal were obviously of the view that her Honour had made a conclusion on the procurvatum.  In paragraph 93 on page 146 the Court said:

Further, as I have indicated above, there is arguably a basis in the evidence for a finding that the appellant’s procurvatum condition constitutes a serious disability.  The primary judge’s contrary conclusion, that the procurvatum did not appear “to have any functional significance for Mr Harris” was not supported by any reasons that her Honour gave.

Her Honour has concluded, as she said in 242, that there would appear to be no functional significance.  If it goes back to her, she is asked to find against herself.  She made a finding as to the credit of Dr Bellemore where Dr Bellemore had been cross‑examined as to whether or not he had had certain apparatus on the frame ‑ ‑ ‑

FRENCH CJ:   It was either hinges or conical washers were there.

MR TOOMEY:   Just so, your Honour, and for three days in the witness box he swore that he had had.  Then when a radiologist report saying, “No, you did not”, was tendered over strenuous objection on Dr Bellemore’s behalf, Dr Bellemore then made the admission that he had been negligent in not having them.  Since that brought about the second osteotomy, he admitted liability for all the consequences “whatever they may be”, they are his words not mine, of that second osteotomy.  

	If that goes back to her Honour, her Honour may be faced with the question of the credit of Dr Bellemore.  She has already found that despite the days of staunch support of what was simply an untruth, whether deliberate or not, she has found that that does not affect his credit.  Rather, that it reflected favourably on his credit that he admitted it; having been faced with the fact that he was caught, he admitted it.  So there would be a credit issue and perhaps, one does not know, a very important credit issue.  Further, the whole of this case was tainted by her Honour’s searching, we say, for single cause.

BELL J:   Mr Toomey, it was your proposal that the matter should be the subject of a remitter, that it was not an appropriate matter for the Court – is that right?

MR TOOMEY:   I am sorry.  We were asked would we agree to the Court of Appeal determining damages.  We said, no, we would not.  We were never asked whether we agreed to it being remitted to the trial judge and had we been asked, we would have opposed it.

FRENCH CJ:   It is a point to take.  You do not wait to be asked for that sort of thing, do you?

MR TOOMEY:   We did not know whether the Court of Appeal was going to remit it at all, your Honour.

BELL J:   But in circumstances where your stance was it is not appropriate for you, the Court of Appeal, to determine these complex issues, the subject of 29 days hearing before the primary judge, it must have occurred to you that the likelihood was if the Court of Appeal accepted that submission, it would be remitted to the primary judge?

MR TOOMEY:   Your Honour, it was done without us being heard on it.  We were heard on it at the end of the hearing but we were then faced with the remitter having occurred.  Had we been given the chance, we would have argued against it for the grounds I am putting.

FRENCH CJ:   The limitation for which you contend, in the circumstances of the case, would have been unusual and surprising absent some particular reason for it.  One would have thought that that is the sort of thing that would be put up at the time.  Anyway, you say that it was not really addressed at the time or considered.

MR TOOMEY:   We were not asked about a remittal.  We were asked would we agree to the Court of Appeal determining it and we said no, we would not.  Had we been asked about a limited remitter, then we might have had something to say about that too.  Your Honours, can I say this.  All the consequences of the second osteotomy included the 20 per cent of the procurvatum and, indeed – I realise I am out of time your Honours, if you will give me one moment.  Indeed, if you look at paragraph 96 of the Court of Appeal judgment on page 147, you will see that the Court of Appeal were of opinion that applicant would not be precluded from claiming in respect of the 20 per cent of the procurvatum caused by the second osteotomy, in other words, on the remitter and yet it is said that we cannot have that on the psychiatric injury.  May it please your Honour.

FRENCH CJ:   We will adjourn briefly to consider what course we should take.

AT 3.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.46 PM:

FRENCH CJ:   The applicant seeks special leave to appeal from a decision of the Court of Appeal of New South Wales which allowed, in part, an appeal brought by the applicant in relation to his partially successful claim in the Supreme Court for damages for personal injuries.  The claim arose out of orthopaedic procedures performed on the applicant’s right leg by the respondent.  

	The applicant succeeded in the Court of Appeal on the ground that the primary judge had erred in holding that the applicant had not included in his pleadings a claim for damages for negligent failure by the respondent to correct a deformity known as procurvatum which developed during a leg‑lengthening procedure known as an osteotomy on the applicant’s right leg.  The applicant failed in the Court of Appeal on a ground of appeal that a psychiatric condition, which he suffered, was caused by the respondent’s negligence.  

	The applicant seeks special leave to appeal against the order of the Court of Appeal which remitted the matter to the primary judge to determine whether the applicant’s procurvatum condition could have been corrected by the respondent, whether it constituted a disability of any significance and whether it was caused by the respondent’s treatment of the applicant.  The remitter extended to a requirement that the primary judge consider what further damages, if any, should be awarded to the applicant.

	The applicant complained that the primary judge had made findings in relation to the procurvatum condition which amounted to a pre‑judgment on aspects of the questions remitted to her.  However, having regard to the primary judge’s conclusion that the procurvatum claim was not before her, such observations as she made did not, in our opinion, preclude her from coming from conclusions favourable to the applicant on remitter.

	The Court of Appeal also found that the applicant had not pleaded that procurvatum was a consequence of a second osteotomy procedure which was pleaded as the only cause of the applicant’s psychiatric condition.  

	The applicant made submissions in this Court of a failure of process in relation to the treatment by the trial judge of the factors giving rise to the psychiatric condition.  That argument was not put to the Court of Appeal.  It related to asserted inconsistencies between the assumptions upon which the psychiatrist’s evidence at trial was based and specific findings by her Honour.  Those assumptions related to the pleaded case.

	In our opinion, the course of the argument on the appeal as explained by counsel for the applicant indicates that this is not a suitable vehicle for the grant of special leave in relation to the causation point.  Special leave will be refused with costs.

	The Court will now adjourn to reconstitute for the next matter.

AT 3.49 PM THE MATTER WAS CONCLUDED