Andonovski v Park-Tec Engineering Pty Ltd; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd
[2013] NSWSC 1926
•12 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd [2013] NSWSC 1926 Hearing dates: 12/12/2013 Decision date: 12 December 2013 Jurisdiction: Common Law Before: Campbell J Decision: I admit the reports of Dr Ellis
Catchwords: EVIDENCE - admissibility of medical reports - objection under s136 Evidence Act 1995 (NSW) - objection under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW - objection under s63 - whether witness unavailable to give evidence Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Aon v ANU
Cropper v Smith
Pitcher v Langford (1991) 23 NSWLR 142Category: Procedural and other rulings Parties: Vlado Andonovski (plaintiff in both matters)
Park-Tec Engineering Pty Ltd (first defendant in matter 2007/292845)
Barbeques Galore Pty Ltd (second defendant in matter 2007/292845)
East Realisations Pty Ltd (first defendant in matter 2008/316044)
RD Transport Services Pty Ltd (second defendant in matter 2008/316044)Representation: Counsel:
AJ Lidden SC with E Welsh and VM Sciglitano (plaintiff in both matters)
TA Berberian (first defendant in matter 2007/292845)
NJ Polin (second defendant in matter 2007/292845)
RA O'Keefe (first and second defendants in matter 2008/316044)
Solicitors:
Brydens (plaintiff in both matters)
HWL Ebsworth (first defendant in matter 2007/292845)
Stiles Lawyers Pty Ltd (second defendant in matter 2007/292845)
Vardanega Roberts (first and second defendants in matter 2008/316044)
File Number(s): 2007/292845 2008/316044
EX TEMPore Judgment
The plaintiff has tendered a bundle of medical reports, under cover of a document styled schedule of the plaintiff's medical reports. There are 53 in number, including the reports of Dr Teychenne of which there are seven. There are a number of objections to the reports, which I can deal with briefly.
First, the defendants together say I should make an order under s 136 Evidence Act 1995 (NSW) limiting the use which may be made of the histories as recorded by the doctors; that is to say effectively exclude what is usually taken to be the ordinary operation of s 60 of the Act that evidence which is admissible for the one purpose may be taken as admitted for all purposes.
Secondly, the first defendant, whose liability, if any, is to be quantified in accordance with the provisions of the Civil Liability Act 2002 (NSW), objects on the basis that the various assessments of permanent impairment made by the doctors under the provisions of the WorkCover Guidelines or the Motor Accident Permanent Assessment Guidelines should not be admitted as evidence against it. I do not understand the plaintiff to cavil with the suggestion that such a limitation is appropriate in the circumstances of this case and I will accede to that application.
The controversial matter relates to the six reports of Dr Max Ellis between 14 August 2005 and 5 September 2012. It is not controversial that Dr Ellis is a general surgeon who is giving evidence in report form in relation to what might be loosely styled the plaintiff's orthopaedic injuries, as opposed to his psychiatric injury.
The first defendant and "the third defendant", as I have styled Mr O'Keefe's clients for the purpose of marking exhibits, object to the tender of those reports as being contrary to the provisions of r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW). The gravamen of this is that a joint report from four orthopaedic surgeons has been tendered in the proceedings as exhibit 1D7. Sub-rule 5 is in the following terms,
Except by leave of the Court a party affected [by the tender of the joint report] may not adduce evidence from any other expert on the issues dealt with in the joint report.
Ms Welsh (with whom Mr Lidden SC appears), who appears with Mr Sciglitano for the plaintiff, acknowledges the practical effect of the rule and seeks leave accordingly. Learned counsel is unable to say why Dr Ellis did not participate in the conclave and in the preparation of the joint report. He clearly could have. It is not uncommon in my experience in personal injury matters for general surgeons, as Dr Ellis is, to do the work of orthopaedic surgeons, at least for medico-legal purposes, and frequently such general surgeons participate in conclaves of the orthopaedic surgeons convened for the purpose of the rules.
It is clear that the purpose of the rule is to facilitate the refinement of the issues of an expert nature relevant to the determination of factual disputes in proceedings. Indeed, the very purpose of rules 31.24, 31.25 and 31.26 is to facilitate the experts coming together, and through open and frank discussion amongst them, as it were, to resolve the differences of opinion that they may have expressed in their primary reports. This is for the purpose of simplifying the issues and shortening court hearings. Indeed, the purpose of sub-rule 5 seems to be that, at least as a general rule, where those experts who have participated in the conclave, in the preparation of a joint report and in the giving of concurrent evidence have reached agreement about issues within their sphere of specialised knowledge, the Court will act upon their agreement. This seems to further, I would think, the overriding purpose expressed in s 56 Civil Procedure Act 2005 (NSW). However, the rule allows other evidence, whether or not contradictory, to be admitted with leave. It is for this reason that I have expressed myself in terms of what appears to be the general rule.
Ms Welsh, as I have said, acknowledges that Dr Ellis could have and perhaps should have participated. It is also quite clear that those experts who did meet in conclave and did produce the joint report, which included the plaintiff's sometime treating orthopaedic surgeon, Dr Lee, substantially agreed about every issue previously in dispute. I must say, on one view of it they have substantially agreed, as I read it, that so far as the first injury of March 2004 is concerned there is only one injury that has any ongoing significance at all and that is the injury to the plaintiff's left heel and the consequent subtalar joint arthritis in that region.
So far as the second accident is concerned (the motor accident of May 2004), subject to what I make of the cross-examination of the panel by Mr Lidden of senior counsel yesterday, those experts may have effectively, as it were, given away the plaintiff's whole case in as much as they have reached agreement that the forces involved in the bus accident were so minimal that there was no significant external force involved, so that it would be impossible for the plaintiff to have been injured in the way he alleges.
This case, as I have indicated already, concerns injuries that happened nearly ten years ago, and which I am told, on the plaintiff's case have left him unfit to work for that period of time and with significant disabilities caused by the physical injuries to many parts of his body. He has also suffered a consequential depressive reaction.
I should say that it is likely on the basis of the evidence I have seen and heard so far, that a strong argument will be mounted at the end of the case that there is, however one views the medical evidence, a strong element of exaggeration and embellishment accounting for both the plaintiff's presentation to the various doctors he has seen for medico-legal purposes, and in giving evidence in this Court. However that may be, it seems to me that Dr Ellis is, if I can put it this way, the plaintiff's last forensic champion standing, and to exclude his evidence at this stage would be substantially to deprive the plaintiff of the forensic opportunity to have the case he wishes to make presented for determination by the Court.
As I have indicated, the joint report was tendered by the first defendant and the exclusion of Dr Ellis' reports will have the effect that the plaintiff has been entirely deprived of the opportunity of presenting evidence in support of the whole of his case as he wishes to present it. For these reasons, I think it appropriate for me, notwithstanding the general rule, and the general purport of the rules, to grant leave for the admission of Dr Ellis' reports under r 31.26(5).
That leads me to a final point. Mr O'Keefe has objected on the basis that his solicitors have given notice to the plaintiff's solicitors that Dr Ellis is required for cross-examination. Ms Welsh has explained that he is unavailable because he is undergoing, as I understood the explanation given, a surgical procedure currently. I did not understand Mr O'Keefe to take issue with that matter but rather, it was argued that his unavailability deprived his client of the opportunity of testing Dr Ellis, no doubt, putting to him the matters agreed to by the joint experts and seeking to elicit from him, on the basis of that material, relevant concessions.
The question has to be determined in accordance with the provisions of s 63 of the Evidence Act, which creates an exception to the hearsay rule if a person who made a previous representation is not available to give evidence about an asserted fact. Unavailability of persons is a concept which is defined in Cl 4 of Pt 2 of the dictionary to the Act. The definition includes in para (c) the following provision:
A person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.
Given that there seems to be no doubt that Dr Ellis is not able to attend court for medical reasons, I am satisfied that he is physically unable to give the evidence. I do not have any evidence before me from which I could make any decision about how long he is likely to be incapacitated for. However it would seem to me, subject to giving Mr O'Keefe a further opportunity to address, that given the age of this matter; the stage we are at in the hearing of the case; and the time for which it would be necessary to adjourn the case to accommodate my roster for next year, it would not be reasonably practicable to overcome the present unavailability by granting an adjournment.
That is my prima facie view, and when I conclude these reasons I will invite Mr O'Keefe to address me on that further, should he wish to do so. But for those reasons, I propose to admit the reports of Dr Ellis. As I have said, I grant leave, and I will admit the reports of Dr Ellis.
In regard to other matters, the evidence as to whole person impairment contained in the reports will not be evidence against the first defendant and the histories contained in the reports will not stand as evidence of the fact. That is to say, in relation to the histories I will exclude the operation of s 60 of the Act pursuant to s 136 of the Act.
The objection on the basis of Dr Ellis' unavailability to give evidence is made on behalf of the first defendant and the third defendant. Ms Berberian of counsel for the first defendant has informed me that notice was given by her solicitor under the rules that Dr Ellis was required for cross-examination. Mr O'Keefe's client took the precaution, if I could put it that way, no doubt in compliance with the District Court rules, to subpoena Dr Ellis to give evidence, and neither Ms Berberian nor Mr O'Keefe cavil at the statement made by Ms Welsh that Dr Ellis is unavailable to give evidence because he is undergoing a surgical procedure or is about to undergo a surgical procedure.
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( Note: Mr O'keefe did not wish to be further heard.)
Decision last updated: 11 February 2014
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