Tinnock v Murrumbidgee Local Health District (No 2)

Dr Payne, who is the surgeon who operated on Mrs Tinnock to repair her incisional hernia, is giving evidence before me. Mr Barnes of Counsel, who appears for the defendant, has tendered his evidentiary statement of 9 April 2015 and Mr Bartley, of Senior Counsel, who appears with Mr R Ingram for the plaintiff, has objected to paragraphs 21 and 22 in which Dr Payne sets out his usual practice of advising a patient proposing to undergo a hernia repair of the risks and complications commonly associated with the procedure.

Mr Bartley has objected to that evidence of the doctor’s usual practice and has submitted that, although such evidence may be admissible in relation to more or less mechanical business activities, such as posting a letter from a solicitors office or the like (I do not purport to deal exhaustively with the examples learned Senior Counsel put in argument), it does not apply in relation to the sophisticated professional practice of a surgeon advising a patient of the nature of a procedure and the risks involved at the first consultation. That matter, Mr Bartley submits, is no more than a self-serving statement of a type that should not be permitted.

Mr Barnes argues that the matter is covered by the decision of the Court of Appeal in Connor v Blacktown District Hospital [1971] 1 NSWLR 713. In that case, Jacobs JA ( as his Honour then was) (at 716) said:

Connor has been followed in a number of cases in the Common Law Division involving medical negligence and Mr Barnes has referred me to Bergman v Haertsch [2000] NSWSC 528 at [111] and [271]; Peden v Ferguson [2012] NSWSC 492 at [117] - [118]; and Smythe v Burgman (No 2) [2015] NSWSC 298, at [116] - [119].

In my judgment the passages objected to rather punctiliously follow the judgment of Jacobs JA which I have quoted above. Dr Payne does not purport to say what he did on a particular day; rather, he has given evidence, I think in sufficient detail, of his usual and invariable practice from which, no doubt, Mr Barnes will submit in due course I should draw the inference that the practice was followed in the consultation with Mrs Tinnock. It seems to me that evidence of practice is properly admissible as circumstantial evidence of a fact in issue.

I am bound to follow the Court of Appeal. I am bolstered by the decisions of other judges of the Common Law Division who have applied Connor to medical negligence cases. I rule that paragraphs 21 and 22 are admissible evidence of Dr Payne's usual practice.