The duty of the court to self-represented litigants

by | Nov 7, 2016 | Health Blog

A recent decision of the Supreme Court of Victoria Court of Appeal highlights some of the difficulties faced by the courts when a self-represented litigant appears before them and the duty of a judge to ensure a fair hearing of trial.

In late 2008, the applicant noticed swelling on the left side of his face and neck extending along the jaw line to a point near the left ear. Following an ultrasound examination, the applicant was referred to hospital. He attended the hospital on 12 February 2009 and was examined by Mr Chan, an ENT surgeon. Fine needle aspiration of the lump was performed and a diagnosis made of “features suggest abscess”. A CT scan concluded a “rim enhancing cyst arising from the left parotid gland.”

On 12 March 2009, Mr Chan advised the applicant that he should undergo a left parotidectomy. The applicant signed a consent form which (among other things) noted the risks and complications that had been discussed with Mr Chan, including: risks of injury to the facial nerve, risk of injury to the great auricular nerve, recurrence of the lump, the need for pathology to be performed in order to advise as to future treatment and Frey’s syndrome (sweating while eating). The applicant was booked in for surgery.

The operation was conducted on 1 April by Mr Hall, an ENT surgeon. The lesion was completely removed and the facial nerve was intact. Subsequent histology of the lesion demonstrated a benign tumour. There was no evidence of malignancy.

Following the operation, the applicant suffered from significant pain and other adverse effects. A claim for damages was brought alleging that the hospital’s doctors were negligent in their treatment by conducting the left parotidectomy when there was no need to do so; failing to properly advise him of the risks; and failing to perform the operation with reasonable care and skill.

The applicant represented himself at trial, which proceeded over nine hearing days. The judge concluded that there was no breach of duty. The applicant had been given advice of the relevant risks, and the overwhelming medical opinion in the case was that the lump needed to be surgically excised. Further, the judge found there was no causal link between the surgical procedure and the applicant’s neuropathic pain.

Appeal Decision

The critical issues on appeal were:

  • Whether the judge erred in finding that the parotidectomy was reasonable and appropriate;
  • Whether the judge failed to provide to the applicant the appropriate assistance required to be provided to a self-represented litigant and whether the judge’s questioning of the expert witnesses made the trial unfair to the applicant.

In relation to the first issue, the Court of Appeal found that this had not been made out. The weight of the expert evidence was that it was standard practice of experienced medical practitioners to recommend that the lump be excised, and the applicant had not established any error by the judge in accepting that evidence and relying on it.

In relation to the second issue, the applicant submitted that the trial was unfair because the judge failed to provide to the applicant the proper scope of assistance that the law requires to be provided to a self-represented litigant. However, the Court of Appeal found there was no substance to this ground.

The duty of the judge is to provide advice and assistance to a litigant in person in order to diminish, so far as possible, the disadvantage that that litigant would ordinarily suffer when opposed to a trained lawyer on the other side. The judge is required to give to the unrepresented litigant sufficient advice on matters of practice and procedure to avoid that litigant from suffering such a disadvantage.

On the other hand, it is important that a judge, while providing assistance and advice to the unrepresented litigant, does not become an advocate in that litigant’s cause.

Review of the transcript of the trial revealed that the judge gave to the applicant substantial assistance in the presentation of his case, and in the questioning of witnesses. The judge fully complied with his obligation to provide assistance and advice to the applicant as to his rights, and to ensure that the applicant was afforded a fair trial of his claim.

To read the decision in Redzepovic v Western Health [2016] VSCA 251, click here.

Enore Panetta

Enore Panetta