Kwong v Abdulwahab [2016] NSWCA 107 ultimately saw an appeal allowed and damages reassessed by the Court of Appeal in a medical negligence claim where breach of duty had been admitted before trial. The breach concerned treatment of a laceration to the claimant’s fingers, which led to a permanent loss of movement.

The decision is of interest as Basten JA commented on fairness to witnesses, including a treating medical practitioner, in being given an opportunity to answer a proposition critical of his or her evidence.

At trial it was submitted, for the claimant, that the claimant had fabricated a complaint of back pain and maintained the fabrication over some years in consultations with his general practitioner, in order to obtain narcotic medications: [11]. The submission entailed an assertion that the claimant’s doctor (who gave oral evidence)  continued to dispense narcotic-based medication to the plaintiff at a time when he knew the plaintiff was abusing it: [9].

Basten JA said at [11] – [13]:

  1. It was, to say the least, unusual that senior counsel for a claimant would submit that his own client had fabricated a complaint of back pain and maintained the fabrication over some years in consultations with his general practitioner. The reason for taking that course was, no doubt, that if his client were believed in that regard, it might be fatal to his claim for damages flowing from the injury to his finger. The further result was that the judge was being invited to conclude that both the claimant and Dr Vu had lied on oath in giving evidence during the trial.
  2. That course was not merely unusual, it was outrageous. Neither the claimant nor Dr Vu had any such proposition put to them in the course of lengthy testimony. It is true that both were called in the claimant’s case, but that does not permit nor excuse such an attack.
  3. The fundamental requirement of the adversary process that a witness must be given the opportunity to answer a proposition critical of his or her evidence is not a mere construct of professional ethics; it is fundamental to the fairness of a trial….