Harris v Bellemore [2011] NSWCA 196

Harris v Bellemore [2011] NSWCA 196

The primary judge erred in rejecting the procurvatum claim on the basis that it had not been pleaded and did not give reasons supporting the conclusion that the procurvatum lacked functional significance; the procurvatum issues therefore had to be remitted. The appellant did not show error in the refusal to admit the late Simonis current-condition report because the primary judge was entitled to find no exceptional circumstances under UCPR r 31.28. The appellant also did not show error in the rejection of the psychiatric-condition claim, because the primary judge was entitled to accept that the respondent's negligence did not cause or materially contribute to that condition.

Jurisdiction
Australia
Judgment Date
21 July 2011
Procedural Posture
Medical Negligence Appeal / Appeal From Harris V Bellemore [2010] NSWSC 176
Outcome
Appeal allowed in part.
Legal Topics
['pleadings' 'ucpr 31.28' 'late Expert Report' 'exceptional Circumstances' 'causation' 'psychiatric Injury' 'jones V Dunkel Inference']
['procedure' 'medical Negligence' 'evidence'] ['pleadings' 'ucpr 31.28' 'late Expert Report' 'exceptional Circumstances' 'causation' 'psychiatric Injury' 'jones V Dunkel Inference']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Medical Negligence Appeal / Appeal From Harris V Bellemore [2010] NSWSC 176

Legal Issues

  1. 1 ["Whether the primary judge erred in finding that the appellant's case did not include a claim relating to his procurvatum deformity." 'Whether the primary judge erred in refusing leave to tender a report of Mr Simonis dated 25 May 2009 that had not been served within the time required by Uniform Civil Procedure Rules 2005 r 31.28.' "Whether the primary judge erred in finding that the appellant's psychiatric condition was not caused by the respondent's negligence in treatment."]

Ratio Decidendi

The primary judge erred in rejecting the procurvatum claim on the basis that it had not been pleaded and did not give reasons supporting the conclusion that the procurvatum lacked functional significance; the procurvatum issues therefore had to be remitted. The appellant did not show error in the refusal to admit the late Simonis current-condition report because the primary judge was entitled to find no exceptional circumstances under UCPR r 31.28. The appellant also did not show error in the rejection of the psychiatric-condition claim, because the primary judge was entitled to accept that the respondent's negligence did not cause or materially contribute to that condition.

Court Disposition

Appeal allowed in part.

Orders

  • ['Set aside Orders 3, 4 and 5 made at first instance on 13 August 2010.' 'Remit the proceedings to the primary judge to make such orders as may be considered appropriate in respect of costs of the proceedings at first instance, to determine the specified procurvatum questions and to make such consequential orders as...