Morocz v Marshman [2015] NSWSC 149

Morocz v Marshman [2015] NSWSC 149

The challenged expert reports were inadmissible because the experts were not relevantly qualified in relation to the surgical procedure or issues in dispute, expressed opinions outside their areas of expertise, failed to provide adequate reasoning or factual foundations, had not examined the plaintiff where that was necessary, or addressed matters irrelevant to the pleaded failure to warn case. Because those experts' evidence would not be admitted, there was no need to arrange video link evidence for them. A separate trial of liability and damages was inappropriate because the events were old, the proceedings had been on foot since 2010, the damages case should be ready, and all issues...

Jurisdiction
Australia
Judgment Date
06 March 2015
Procedural Posture
Common Law Medical Negligence Proceedings / Procedural Application for Expert Evidence by Video Link and for Separate Trial of Liability and Damages
Outcome
Application for video link evidence dismissed except in the case of Drs O'Reilly and Banks if required; separate trial of liability and damages declined; costs of the application to be costs in the proceedings.
Legal Topics
['expert Evidence' 'admissibility of Expert Reports' 'evidence by Video Link' 'failure to Warn' 'separate Trial of Liability and Damages']
['medical Negligence' 'evidence' 'civil Procedure'] ['expert Evidence' 'admissibility of Expert Reports' 'evidence by Video Link' 'failure to Warn' 'separate Trial of Liability and Damages']

Case Brief

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Procedural Posture

Common Law Medical Negligence Proceedings / Procedural Application for Expert Evidence by Video Link and for Separate Trial of Liability and Damages

Legal Issues

  1. 1 ["Whether the plaintiff's nominated expert witnesses should be permitted to give evidence by video link." 'Whether the expert reports challenged by the defendant were admissible as expert opinion evidence.' 'Whether the issues of liability and damages should be heard separately.' "Whether the expert evidence was relevant to alleged failure to warn about risks of bilateral endoscopic thoracic sympathectomy and causation of the plaintiff's alleged conditions."]

Ratio Decidendi

The challenged expert reports were inadmissible because the experts were not relevantly qualified in relation to the surgical procedure or issues in dispute, expressed opinions outside their areas of expertise, failed to provide adequate reasoning or factual foundations, had not examined the plaintiff where that was necessary, or addressed matters irrelevant to the pleaded failure to warn case. Because those experts' evidence would not be admitted, there was no need to arrange video link evidence for them. A separate trial of liability and damages was inappropriate because the events were old, the proceedings had been on foot since 2010, the damages case should be ready, and all issues...

Court Disposition

Application for video link evidence dismissed except in the case of Drs O'Reilly and Banks if required; separate trial of liability and damages declined; costs of the application to be costs in the proceedings.

Orders

  • ["I dismiss the application for the taking of evidence by video link except in the case of Drs O'Reilly and Banks if required." 'I decline to order that the issues of liability and damages be heard separately.' 'I order that the costs of this application be the costs in the proceedings.']