Polsen v Harrison (No.7) [2021] NSWSC 1575

Supreme Court New South Wales

Medium Neutral Citation: Polsen v Harrison (No.7) [2021] NSWSC 1575 Hearing dates: 11 November 2021 Date of orders: 1 December 2021 Decision date: 03 December 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to rely on the defendant's supplementary statement dated 14 September 2021 is refused. (2) The defendant's notice of motion filed 1 October 2021 is otherwise dismissed. (3) The defendant is to pay the plaintiff's costs of the notice of motion. Catchwords: CIVIL PROCEDUE – late service of supplementary statement – part heard trial – plaintiff already partly cross-examined – unfairness – prejudice to plaintiff – unexplained delay Cases Cited: Polsen v Harrison (No. 4) [2021] NSWSC 251 Category: Procedural rulings Parties: Katrina Marie Polsen (Plaintiff) Dr Harrison (Defendant) Representation: Counsel: JA Hillier (Plaintiff) M Hutchings (Defendant)

Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/204451 Publication restriction: Nil

Judgment 1. On 1 October 2021 the defendant in these proceedings, Dr Harrison, filed a notice of motion seeking to extend time for him to serve and rely upon his supplementary statement dated 14 September 2021. 2. The proceedings involve allegations of medical negligence against Dr Harrison. The matter is part heard. It commenced on 15 February 2021 and after a number of interruptions caused by various interlocutory applications, the proceedings were adjourned part heard on 2 March 2021 with the plaintiff, Ms Polsen, still under cross-examination. 3. Dr Harrison had already provided a very detailed evidentiary statement within the relevant Court timetable in November 2020. That detailed statement made reference to a seminar that he presented in Wagga Wagga in April 2013 prior to the surgery that Ms Polsen underwent at which considerations relating to bariatric surgery were presented by Dr Harrison and others. 4. It has been a constant feature of Ms Polsen's claim that Dr Harrison did not adequately advise her regarding the bariatric surgery he performed and did not advise or adequately advise her regarding alternative treatments to bariatric surgery. It has also been part of her case from its very early stages that Dr Harrison should not have performed the surgery upon her as she was unsuitable. 5. For the reasons that follow, I communicated a ruling to the parties on 1 December 2021 that leave is refused to rely upon the supplementary statement. These are my reasons.

Background 1. Ms Polsen consulted Dr Harrison in May 2013. She underwent a gastric sleeve procedure performed by him on 22 July 2013. It is common ground that the procedure was to address Ms Polsen's weight management issues given her BMI of 48.5 and her associated health and life expectancy issues. 2. Ms Polsen had a very complicated and stormy post-operative course involving many subsequent procedures. She says that this was caused by Dr Harrison's negligence. She alleges that she has been left significantly impaired and that she cannot work or perform household tasks and has extensive ongoing treatment needs. 3. On 6 July 2016 a Statement of Claim was filed in the District Court at Wagga Wagga seeking damages on the basis that Dr Harrison was negligent in his preoperative advice, performance of the surgery and management of post-operative complications. It was also alleged that the second defendant, the local health district responsible for Wagga Wagga Base Hospital, was negligent in its management of the post-operative complications. (The second defendant was removed from the proceedings by consent judgment in its favour in mid-2019.) 4. Over the ensuing four and a half years, various case management orders were made, including transfer to the Supreme Court in June 2018. There were multiple directions hearings at which orders were made to ensure the matter was prepared in an orderly fashion and for the allocation of a hearing date at an appropriate stage of readiness. 5. Other background and procedural matters are dealt with at [10] to [24] of Polsen v Harrison (No. 4) [2021] NSWSC 251. 6. Relevantly for the purposes of this application, in February and March 2021 at the hearing Ms Polsen was cross-examined over three days. She is to return to cross-examination on 6 December 2021 when the hearing resumes. 7. Part of that cross-examination included being asked about and propositions being put to her as to what she could recollect from a seminar conducted by the defendant. No objection was taken to the propositions being put, but it now appears that some of those propositions - if not all - had their origin not in Dr Harrison's statement that had been served in November 2020, but only in the proposed supplementary statement of September 2021.

The application 1. The notice of motion filed on 1 October 2021 was prompted it seems by comments from the Court that the defendant ought not assume that it would be given leave to rely on a supplementary statement of Dr Harrison simply by asking. 2. The notice of motion sought an order extending time for the defendant to serve the statement to 14 September 2021, and that the defendant be granted leave to rely upon it, with each party to bear its own costs of the motion. 3. In support, an affidavit of Meghan Jeanne Carruthers was read. That affidavit annexed the initial statement of Dr Harrison dated 20 November 2020 which had appended to it a large amount of material described as slides that he said "were of the type in use at the time of the seminar on 11 April 2013" plus educational material he said was provided to Ms Polsen as well as the referral letter from her GP, the consent form signed by Ms Polsen, the operation notes and other medical and hospital records. The 14 September 2021 supplementary statement was also attached. 4. Reference was made in the narrative of Ms Carruthers' affidavit to parts of the transcript of Ms Polsen's cross-examination in February 2021 where she had provided answers to questions in cross-examination regarding her attendance at the seminar. 5. Ms Carruthers also deposed to the fact that the supplementary statement contained "additional detail about the content of the seminar which took place on 13 April 2013". 6. The affidavit does not explain why the supplementary statement was not provided until September 2021, nor when instructions were given by Dr Harrison as to its contents, nor why that material was not included in his November 2020 statement. 7. The plaintiff relied on an affidavit of Tonya Therese Longmore dated 11 October 2021 which outlined the history of service of evidentiary statements and other relevant procedural matters. The narrative of that affidavit referred generally to the cross examination of Ms Polsen on 25 and 26 February 2021 at pp 288 to 490 of the transcript.

Submissions 1. Counsel for Dr Harrison, Mr Hutchings, argued that although the opening provided by Mr Bartley SC mentioned the information seminar and that Ms Polsen had attended it, this was not pleaded in the statement of claim and so the supplementary statement of Dr Harrison "does no more than address a central plank of the plaintiff's case". 2. In oral submissions Mr Hutchings added that the supplementary statement was necessitated by the late amendments to the plaintiff's statement of claim addressing (permissibly, and in accordance with my ruling), the "risk of harm" relevant to the case and the nature and content of the duty of care that needed to be formally pleaded. He argued that the amendments introduced new material and this provided another basis for the need for the supplementary statement. 3. Counsel for Ms Polsen, Ms Hillier, submitted, persuasively, that failure to advise adequately prior to the surgery was always part of Ms Polsen's case and the September 2021 amendments to the statement of claim had nothing to do with the additional evidence now sought to be added by Dr Harrison. 4. Ms Hillier argued that this is particularly so given that first, Dr Harrison referred to and relied on things he asserts he "told" Ms Polsen at the information seminar in his November 2020 statement so was apparently well aware that this was a relevant issue and sought to deploy that material in his favour. Second, questions put to Ms Polsen in cross-examination in February 2021 included things referred to in the supplementary statement that were not in his November 2020 statement. 5. No explanation at all was given for the lateness of the supplementary statement sought to be served over 6 months after the hearing was adjourned part-heard. The authorities point to an obligation to explain delay but no attempt has been made to do that. 6. It would be unfair to allow Dr Harrison to now opportunistically rely on this additional evidence when it should have been in the initial statement and certainly needed to be served before Ms Polsen was cross-examined.

Decision 1. It was common ground that I have power under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 1.12 to allow for the extension of time to attend to certain matter(s) if: 1. The extension is genuinely sought for a proper purpose; 2. The extension will cause no significant substantive prejudice to the other party and; 3. An order for costs or the imposition of other terms can protect the other party from disadvantage caused by the extension of time. 1. In exercising any power under the UCPR, I am bound by the statutory considerations set out in ss 56 to 61 of the Civil Procedure Act 2005 (NSW). 2. Without exercising pedantry regarding compliance with earlier orders requiring evidence to be served, there has been no attempt to explain the delay nor explain why the evidence was not included in Dr Harrison's very detailed November 2020 statement which addressed in some detail, the April 2013 seminar, and so indicated an understanding that it was relevant. 3. I do not accept that the supplementary statement was needed to reply to the recent amendments to the Statement of Claim. 4. The adequacy or otherwise of pre-surgery information and advice was and remains an obvious issue in the proceedings. It would be unfair to allow Dr Harrison to add new material and other allegations about what he claims to have said and done this late in the litigation. 5. The experts have conclaved based on the November 2020 statement and have prepared a joint report. 6. The prejudice created cannot be addressed by costs and certainly not by adjournment. 7. To allow the supplementary statement into evidence now has the potential to derail and or delay the hearing set to resume on 6 December 2021, lead to further costs and create a potential or at least perceived unfairness to Ms Polsen by creating an opportunity for Dr Harrison to tailor his evidence having heard her limited recollection of, in particular, that April 2013 seminar. 8. As I observed to counsel during argument, I have significant doubt that information presented in a seminar setting goes anywhere to address the duty of care that rests in a surgeon to explain options and procedures to a potential candidate for surgery. 9. Having considered the arguments presented, I am not persuaded the relief sought in the notice of motion should be granted.

Orders 1. I make the following orders: 1. Leave to rely on the defendant's supplementary statement dated 14 September 2021 is refused. 2. The defendant's notice of motion filed 1 October 2021 is otherwise dismissed. 3. The defendant is to pay the plaintiff's costs of the notice of motion.

********** 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: 08 December 2021