Medical: Application plaintiff to give evidence by AVL.
Gibson v Northern Territory of Australia [2025] NTSC 73 (Link to JADE).
The Plaintiff claimed damages arising from negligent medical treatment and care by the Defendant. In particular, the Plaintiff’s claim related to treatment and care prior to and following a left-sided trochanteric bursa injection procedure at the Royal Darwin Hospital in early 2020, resulting in sustained temporary neuropraxia affecting the whole of her left leg which, in turn, caused the Plaintiff to sustain an injury to her left hip after she fell from her hospital bed. The Plaintiff claims that the Defendant’s negligence resulted in a hip injury and later a total hip replacement.
Leave had already been granted for expert witnesses (four for the Plaintiff and three for the Defendant) to give evidence by AVL at trial. However, all other lay-witnesses were expected to give evidence in person (including those called by the Defendant), subject to the application by the Plaintiff to give evidence by AVL.
The Plaintiff resided near Brisbane and did not wish to return to Darwin. In support of that she provided evidence as to her obligations to her adult son and her own health issues. The Defendant did not consent, saying that the plaintiff is the central witness in the proceeding and her credibility is squarely in issue, as are her alleged mental and physical conditions. She will be subject to lengthy and very intensive document cross-examination likely to take around 2 days (assuming she is present in person). It was submitted that it would be highly advantageous to her, and prejudicial to the Defendant, if she was allowed to avoid the pressure and solemnity of giving evidence from the witness box in person. ([29 h]).
The court reviewed a number of matters where testimony by AVL was considered before refusing the application, saying:
The matter is finally balanced between ensuring fairness to the Plaintiff and to the Defendant. However, in the circumstances of this proceeding, the interest of justice is best served by requiring the Plaintiff to give evidence in person. The Defendant should not be denied the forensic advantage of cross-examination in person, nor should the Court be derived of the opportunity to assess the Plaintiff’s evidence in person, as will be the case with the other lay-witnesses. ([37]).
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