Miller v Jones (No 3) [2019] NSWSC 1444 (22 October 2019)

Last Updated: 27 February 2020

Supreme Court New South Wales

Case Name:	Miller v Jones (No 3)
Medium Neutral Citation:	[2019] NSWSC 1444
Hearing Date(s):	22 October 2019
Date of Orders:	22 October 2019
Decision Date:	22 October 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The two reports of Dr Devitt will be excluded.
Catchwords:	EVIDENCE – Expert opinion evidence – Admissibility – Whether opinions relevant – Whether reasoning process underlying the opinions was properly and sufficiently exposed
Legislation Cited:	Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Barak Pty Ltd v WTH Pty Ltd trading as AVIS Australia [2002] NSWSC 649 Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [2011] HCA 21 Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705, [2001] NSWCA 305; Nye v New South Wales [2002] NSWSC 1270
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. The plaintiff in these proceedings has brought an action against the defendant in negligence arising out of a surgical procedure performed on 3 January 2011.
2. The defendant has sought to rely on two reports of Brian Meldan Devitt, an Orthopaedic Surgeon. The first of those reports is dated 16 May 2018.^[1] The second report does not appear to bear a date but I infer from the letter of instructions that it was provided in about April or May of this year.^[2]
3. Senior counsel for the plaintiff has objected to both of those reports.
4. In the first of his reports, Dr Devitt addressed a number of specific questions at the request of the defendant's solicitor^[3] which were directed to a variety of issues, including the main surgical methods of anterior cruciate ligament reconstruction, the differences in the available surgical methods, and the clinical outcomes of each. Dr Devitt was also asked to report on the clinical outcome of the plaintiff's surgery which is at the heart of these proceedings. One of the questions posed to Dr Devitt was in the following terms:

"Did Dr Jones perform Mr Miller's ACL reconstruction to the standard of a reasonably competent surgeon as at the date of surgery in United Kingdom, Canada, United States and Australia?"

5. Curiously, France was omitted from the first of the question, in circumstances where the surgery which is the subject of these proceedings was carried out in that country.
6. Dr Devitt's response was in the following terms:^[4]

"In my opinion, based on the surgical notes provided and the post‑operative consultations, the description of the ACL reconstruction that Dr Jones performed on Mr Miller would be in keeping with a reasonably competent surgeon as at the date of surgery in United Kingdom, Canada, United States and Australia."

7. Senior counsel for the plaintiff objected to the admission of the first report on the grounds of relevance. He submitted that the report did little more than canvass a number of matters which were not the subject of any dispute, and which, on any view, were not otherwise relevant to the case brought by the plaintiff. Senior counsel also objected to the report on the basis that there was an absence of any reference to the Expert Witness Code of Conduct (“the Code”). The essence of that submission, as I understood it, was that I should exclude the report on the basis that there was no evidence to suggest that the report was prepared in accordance with the Code.
8. Senior counsel for the defendant submitted that it was necessary to read Dr Devitt's first report as a whole. He submitted that when that approach was taken, questions 1 to 5 were in the nature of what he described as “prefatory averments” which formed the basis of the opinion set out in the answer to question 6. Senior counsel submitted that Dr Devitt’s opinion was clearly relevant, and that in all of the circumstances I should infer, notwithstanding the absence of any express reference to it, that the report was prepared in accordance with the Code.
9. In the second of his reports, Dr Devitt answered further questions posed by the defendant's solicitors.^[5] The first question queried whether or not the transtibial surgical approach to an ACL reconstruction, which was adopted by the defendant in this case, was a common method for ACL knee reconstruction in Europe. The second and third questions went to the risk of a further ACL reconstruction being required after initial surgery, and to the failure rate of such reconstructions. Dr Devitt answered those questions in the context of what he described as “athletes”, and also by reference to statistics compiled in respect of Australian Rules Football players.
10. Dr Devitt also observed that the risk of failure of an ACL reconstruction with a hamstring tendon allograph ranged from 3.2 to 8.4%,^[6] but that the failure rate was higher in “elite athletes as listed above”. I note, in passing, that at the time of undergoing the surgery the plaintiff in this case was not an Australian Rules Footballer, but a Rugby League Footballer.
11. Senior counsel for the plaintiff submitted that the second report of Dr Devitt was entirely irrelevant to any issue which I am required to decide. He pointed, in particular, to the fact that the statistical data quoted by Dr Devitt was referable to participants in a completely different professional sport. Senior counsel further submitted that in the event that I concluded that the report was relevant, it should be excluded in the exercise of my discretion on the basis that it is both misleading and confusing.
12. Senior counsel for the defendant submitted that one of the facts in issue in the present case concerned what the plaintiff's future career as a professional Rugby League player would have been, but for the injury that he suffered which necessitated the surgery carried out by the defendant. Senior counsel submitted that Dr Devitt’s second report was clearly relevant to that issue, given the provisions of s 55 of the Evidence Act 1995 (NSW) (the Act).
13. In determining the admissibility of these reports it is necessary to briefly refer to some general principles and statutory provisions. The first concerns the test of relevance, which is set out in s 55 of the Act:

55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.

14. The terms of s 55 of themselves are wide, as evidenced by the use of the word “could”, which has been interpreted as meaning “it is possible that it may”.^[7] The width of the section is also demonstrated by the fact that the relevant effect on the assessment of the probability of a fact in issue may be direct or indirect.
15. Each of Dr Devitt’s reports are expert reports and accordingly, the admissibility of the opinions contained in them is governed by the provisions of s 79 of the Act:

79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally,
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

16. In order for an opinion to be admissible under s 79, there must be a demonstration or exposition of the intellectual basis, and the reasoning process, which underlie such opinion.^[8]
17. As I have indicated, there is also a specific objection taken in relation to the first report due to the absence of any reference to the Code. Rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) provides that unless the Court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the Code and agrees to be bound by it. There is no such acknowledgement in either of the reports of Dr Devitt.
18. The discretion to admit a report, notwithstanding the absence of any reference to the Code, may be appropriately exercised if the Court is satisfied that non‑compliance with the requirement was technical, and that the report was prepared in accordance with the Code.^[9] The evidence before me features letters of instruction which were forwarded to Dr Devitt prior to each of the reports being prepared. The first of those letters^[10] included the following:

“Experts in New South Wales are required to comply with a Code of Conduct, and we enclose a copy for your information. Please comply with that Code in preparing your report.”

19. Similarly, when requesting the second report, the defendant's solicitors said to Dr Devitt in a covering letter of 18 April 2019:^[11]

"A copy of the expert witness code of conduct, being sch 7 of the Uniform Civil Procedures (sic) Rules 2005 has been enclosed for your attention."

20. In those circumstances, the present case can be distinguished from a situation in which there is a complete absence of any reference to the Code in association with the preparation of the report.^[12] I am satisfied in light of the letters of instruction that were forwarded to Dr Devitt that he was aware of the provisions of the Code. In my view, the overwhelming inference is that having been made so aware, he prepared each of the reports in accordance with its provisions. Subject to any other considerations, I would be prepared to exercise my discretion under r 31.23(3) to admit the reports.
21. However, as I have set out, there are other, more substantive, objections. The principal objection to the first of the reports was that its contents were not relevant to any of the issues that I have to decide. There is some substance in that submission. However, in my view, there is a more fundamental objection arising from the report, namely that there is no disclosure or exposition of the reasoning process which led Dr Devitt to form the opinion which he expressed in answer to question 6.
22. Questions 1 to 5 are, as senior counsel for the defendant pointed out, in the nature of “prefatory averments”. They culminate in Dr Devitt expressing what might be described as the “bald” opinion, in answer to question 6, that the surgery was in keeping with a reasonably competent surgeon as at the date of surgery. The reasoning process which led him to form that view, and the reasons which underpinned it, are not exposed. For that reason, the report should be excluded because it fails to comply with the provisions of s 79.
23. As to the second report, what the plaintiff's future career may have been but for the injury that he suffered, and the surgery, are facts in issue. However, I am not satisfied that anything contained in the second report, even allowing for the width of s 55 of the Act, is relevant.
24. Dr Devitt refers to, amongst other things, "athletes” in that report. What is meant by the use of that term is not at all clear. Athletes, as a matter of common sense, may be of several kinds. One inference that might be drawn is that in using that term, Dr Devitt was referring to Australian Rules footballers. Such an inference is open given his answers to questions 2 and 3, and his reference to statistics. If that is the case, then the lack of relevance of the second report is highlighted. Statistics of recovery rates of participants in a completely different sport are not, in my view, relevant to any determination that I have to make. As a matter of common sense, Australian Rules Football and Rugby League, but for the fact that they are ball games which might generally be described as “body contact sports”, are completely different. Further, what is meant by the term "elite athlete" in answer to question 3 is not clear. In all of the circumstances I am satisfied that the second report is irrelevant.
25. I should also say that even if I had come to the view that the second report satisfied the terms of s 55 and was relevant, I would have exercised my discretion to exclude it pursuant to s 135(b) of the Act, on the basis that it is misleading and confusing.
26. Accordingly, the two reports of Dr Devitt will be excluded for those reasons.

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^[1] Exhibit A, p.427-429.
^[2] Exhibit A, p.431-432.
^[3] Exhibit A, p.425-426.
^[4] Exhibit A, p.429.
^[5] Exhibit A, p.430.
^[6] Exhibit A, p.432.
^[7] Nye v New South Wales [2002] NSWSC 1270 at [13] per O’Keefe J.
^[8] Makita Australia Pty Ltd v Sprowles (2002) 52 NSWLR 705, [2001] NSWCA 305; at [85] per Heydon. J (as his Honour then was); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [2011] HCA 21 at [37].
^[9] Barak Pty Ltd v WTH Pty Ltd trading as AVIS Australia [2002] NSWSC 649.
^[10] Exhibit A, p.426.
^[11] Exhibit A, p.430.
^[12] Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980.