Bloodworth v South Coast Regional Health Authority t/as Gold Coast Hospital and Anor Matter No 20052/95 [1998] NSWSC 574 (17 November 1998)

Last Updated: 8 December 1998

CHARLES BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY t/as GOLD COAST HOSPITAL & ANOR

20052/95

17 November 1998

David Kirby J

The Supreme Court of New South Wales Common Law Division

JUDGMENT

HIS HONOUR: This is an application arising out of litigation commenced by Charles Bloodworth against the South Coast Regional Health Authority, trading as Gold Coast Hospital, named as the first defendant, and Dr Geoffrey Miller as the second defendant. Mr Andrew Morrison SC appears for the plaintiff, and Mr Glissan QC appears for both defendants.

Broadly, as I understand it, the plaintiff's case is that in January 1992 he underwent surgery, in the nature of key hole surgery, performed at the Gold Coast Hospital by Dr Geoffrey Miller. It appears to be common ground that in the course of that operation there was a problem, such that there was penetration of an artery, and ultimately cardiac arrest. The plaintiff has apparently sued for assault, battery, negligence and breach of contract. Liability is contested.

The matter came before Master Harrison on 18 September 1998 on an application by the plaintiff to take the evidence of two persons, put forward as experts in the particular area of surgery, namely, Professor Boulos and Professor Davidson. Each surgeon is operating in London. Mr Royle, a barrister practising at the New South Wales Bar, who also has chambers in London, was nominated as an examiner suitable to both plaintiff and defendants were an order made for the taking of that evidence.

When the matter proceeded before Master Harrison, she, to some extent, left the matter to the determination of the trial Judge, once a trial Judge had been assigned to the case. I have now been assigned to this particular matter, and hence this application comes before me.

Mr Morrison, on behalf of the plaintiff, has indicated that reports have been obtained from Professors Boulos and Davidson, which have been served upon the defendants. The defendants, through Mr Glissan, tell me that they are not prepared to admit those reports. If the plaintiff seeks to rely upon them, they will require the attendance of each witness. In these circumstances, Mr Morrison suggests there are three alternatives. They are:-

First, that the plaintiff fund the cost of bringing each witness to Australia for the purposes of giving evidence when the matter proceeds. On a conservative basis, that is, assuming that each would be present in Australia for one week, the cost of their presence, including professional fees, is estimated at $A.65,000. Mr Morrison says that this is likely to be an under-estimate; that given the time required to travel, recover from that travel, see Counsel in conference, and give evidence, that the cost is likely to be closer to $100,000. The defendants have indicated that, for their part, were this course followed each witness could be called in the plaintiff's case, and they would then have the opportunity of cross-examining.

The second alternative is the use of video link. This has the advantage of being significantly cheaper than the cost of bringing the witnesses to Australia. However, it has a number of distinct disadvantages. Three have been identified:-

In the first place, there is the time difference between Australia and England. Each witness pursues a busy operating schedule and, at the end of their surgical day, is tired. Their evidence is likely to be lengthy. It is likely to take much of the night if the link were obtained for the hours

of, say, midnight to dawn. Hence, there are problems of practicality of taking their evidence in this way.

A second problem identified by Mr Glissan is that the evidence is unpredictable in its duration. It is likely, in his view, that the evidence in chief will be long, and so will the cross-examination.

The third difficulty identified is that, should it happen that the evidence is not completed in the time which is allocated, there is significant delay before a further time can be booked for such evidence, and the witnesses' evidence thereafter completed.

I might add to that that there are obviously practical problems, though they are not insuperable, in arranging for this Court to sit between the hours of midnight and dawn. Certainly the defendant does not favour the second alternative nor, I gather, does the plaintiff.

The third alternative is the one proposed by the plaintiff. That is, that there be an examiner appointed under Part 27 of the Supreme Court Rules, namely, Mr Royle. The evidence could then be taken at the convenience of the doctors. It can be recorded both in transcript and by video. The availability of a video would overcome the problem which Master Harrison saw as a potential difficulty in pursuing this course.

It does seem, therefore, that the third alternative of taking the evidence in London by this means, using both transcript and video, is the most sensible and practical course. However, the defendants oppose the taking of evidence upon the basis that there are experts in Australia who could be used by the plaintiff. They, therefore, do not wish to consent to the importation of this evidence which they believe is unnecessary. The defendants acknowledge, however, that current authority, namely, Albrighton v Royal Prince Alfred Hospital, suggests that such evidence would be admissible.

It seems to me that, if the plaintiff wishes to call the evidence of Professor Boulos and Professor Davidson in the belief that they will assist his case, and given that the defendants are not prepared to admit their reports, that the plaintiff ought to have the opportunity of calling those experts. For that reason I am prepared to make an order under Part 27 that Mr Royle be appointed as examiner, at a time to be fixed, to take the evidence of Professor Boulos and Professor Davidson pursuant to Part 27 of the Rules, and that in taking that evidence he so arrange for both a transcript, and a video recording of their evidence to be transmitted to the Supreme Court at the completion of the hearing.

Is there anything further apart from costs?

GLISSAN: No, your Honour.

MORRISON: No, I think that is sufficient, your Honour. If the parties can then make the appropriate arrangements with Mr Royle and the parties will let your Honour know the steps taken in that regard.

(Mr Morrison suggested that costs be costs in the cause.

Mr Glissan agreed with this course.)

HIS HONOUR: So far as costs are concerned, both Counsel are in agreement that the costs before Master Harrison, and the costs of this application before me, should be costs in the cause.