Assignment task:
Pina (P) a 30 year-old real estate agent, claims compensation from Dr Diabolo (D) in relation to a broken arm that she sustained in a fall. According to P's case, after the accident on 30 January 2021 she saw D, but D used an inappropriate treatment - he merely provided a cast whereas the break required an operation and pins. As a result of this failure, P has experienced ongoing problems with her arm. D concedes that P has suffered complications with the injury but denies liability.
P testifies that in the hours after the accident she suffered a lot of pain in her arm and attended D's surgery. According to P's evidence, D took an X-ray, told her it was broken, set her arm in a cast, and told her to make an appointment for its removal in six weeks' time.
In cross-examination, counsel for D asks P, 'Your account of what happened in D's surgery wasn't quite complete, was it?' P answers, 'Yes, it was'. Counsel for D asks, 'Isn't it the case that D told you that you would likely get a better result with pins, but that you said you really didn't want to have an operation?' P answers, 'No, that is not true. Obviously, I wanted to get the best result possible.' D's counsel says, 'But why should we believe you? You're a real estate agent, are you not?' P answers, 'Yes'. D's counsel asks, 'And you have a conviction for theft, don't you?' P's counsel objects, but the trial judge says, 'I'll allow it'. P answers, 'Well, yes, but that was a long time ago. I was a kid. I would never do thing like that now.'
In re-examination, P's counsel asks P about her attitude to receiving medical treatments. P says she has no problem seeing doctors and following their advice to achieve the best medical outcome. P's counsel asks whether P could provide any examples. D's counsel objects but P is allowed to testify as to her heart condition which required surgery when she was young. Since then, she has regular cardiologist consultations, annual CAT scans and a daily regimen of pills.
P's counsel asks about the circumstances of theft. P testifies that it was just a silly prank really. She was with friends in the city after High School one day, and on the spur of the moment, they decided to each steal an item of clothing from David Jones Department Store. But store security caught them. She returned the item and received some kind of fine. No drama.
P's counsel calls Dr Xerxia Willow (XW). XW testifies that she is an orthopaedic surgeon with a private practice in the city. She testifies, 'I was shown the x-rays of P's broken arm and, because the humerus was broken in two places, with a large fragment well out of position, it was clear that surgery would be required, with pins to hold everything back in position. A doctor could not possibly expect to get a good result from simply applying a cast.' P's counsel tenders XW's report.
D's counsel asks XW 'Now, you wrote an article for Orthopaedic Weekly three years ago about the relative advantages of casts and pins for broken arms, did you not?' XW says, 'Yes'. D's counsel says, 'And you wrote, I quote, "In virtually all cases of double breaks, manipulating the fragment into place and then applying a cast, will achieve as good a long- term result as pins, and with faster recovery and lower risk of infection"'. XW says, 'Yes, but this was one of those rare cases where pins are required'. D's counsel says, 'But in your report, you made no mention of your article, and you said nothing about what made this one of these rare cases, did you?' XW says 'No. I didn't know this was required.' D's counsel says, 'In fact, on the contrary, in your report, you say "P presents with a standard double break of humerus." I emphasise the word "standard".' XW says, 'Yes, it was a standard rare case requiring pins.'
D's counsel says to the trial judge, 'No further questions, your Honour. We submit that XW's evidence is inadmissible.' The trial judge responds, 'Well, that's putting it a bit strong. I'll take account of your cross-examination, of course, but I'm not going to totally ignore this evidence.'
D's counsel calls D to testify. D's counsel asks whether D remembers P's attendance at his surgery on 30 January 2021. D says, 'Not well. May I?' and pulls out a file. P's counsel objects, but the trial judge says to D, 'Go on'. Looking at the patient's file, D says that P attended his surgery with a broken arm. He took an x-ray, saw that there was a double break, with the fragment about 20 mm out of alignment. He recommended surgery, but P indicated she did not want to 'Go under the knife'. He gave her a standard dose of pethidine, manipulated the fragment back into place, and applied a cast.
D's counsel next calls Joe (J), P's ex-boyfriend. Asked about P's attitude to medical treatment, J testifies, 'Yes, P is pretty wary about some medical procedures. Pills are fine and x-rays and so on. But in 2015 we went on a holiday to Bali. She refused to have her vaccinations, typhoid and rabies, etc. She said she just hated the idea of anything cutting through her skin.'
D's counsel says to Joe, 'Now you've testified that you were living with P in 2011 when you were both attending your final year at Sydney University. Can I take you to November of that year? What did you and P do later exams that year?' P's counsel objects that this is getting too remote from the issues, but the trial judge allows it. Joe replies, 'Well we did have plans to go to the coast, but that got derailed when P got arrested by the police for shoplifting. After the trial, the fine, and lawyer's fees she had no money left.'
In cross-examination Joe testifies that he was upset and angry with P when she broke up with him. P's counsel then asks Joe, 'You've testified that P has had troubles with the law. You don't have an unblemished record yourself, do you?' D's counsel objects and the trial judge disallows the question saying, 'Yes. I think we are getting further and further from the key issues here.'
Q1. Identify any evidentiary issues arising and discuss how they would be resolved under current law.
Q2. Select one or more of the issues. Do you agree with the law's treatment of the issue(s)? Justify your answer by reference to the purposes served by evidence law and any other relevant policy considerations.