Ankomah v Kaur

[2019] NSWDC 803

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ankomah v Kaur [2019] NSWDC 803
Hearing dates:	01 November 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See 15, 17
Catchwords:	Practice and Procedure. Production of film pursuant to a subpoena. Notice to produce sufficient. Modern litigation requires a new approach to the classical, leisurely approach to decisions making about calling evidence.
Legislation Cited:	Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Samuel Ankomah – Plaintiff Surinder Kaur - Defendant
Representation:	Counsel: H.W.M. Stitt – Plaintiff D.P.M. O’Dowd – Defendant
File Number(s):	2017/00157273
Publication restriction:	Nil.

Judgement

1. HIS HONOUR: The plaintiff alleges that he was injured in a motor vehicle accident which occurred on Tuesday 25 June 2013, almost six and a half years ago. He alleges that the vehicle which he was driving, a Mazda sedan, was struck from behind by a vehicle driven by the defendant. He commenced proceedings in this Court on 25 May 2017, two and a half years ago. At the time that he filed his statement of claim he also filed a statement of particulars in personal injury proceedings.

2. He claims pain and restriction and movement and loss of function of his neck, pain and numbness in each of his shoulders, symptoms throughout his shoulders and arms extending into the fingers, a low back problem, in particular at L4-5 and L5-S1. He alleges in the particulars that there may be a need for laminectomy and fusion at the lumbosacral level. He also claims symptoms which could be described as psychological or psychiatric in nature. He also claims that as a result of this accident he has acquired alcohol dependence and has, amongst other things, a gastrointestinal tract problem due to consumption of medication and a chronic anal fissure.

3. A defence was filed on 6 July 2017 in which the defendant admitted breaching her duty of care to the plaintiff by colliding with the rear of the Mazda sedan which he owned, albeit that it is not admitted that the Mazda sedan was being driven at the relevant time by the plaintiff. The defence specifically admits breach of duty of care caused by colliding with the rear of the Mazda sedan “albeit at low speed”. Other circumstances of negligence alleged by the plaintiff are not admitted. No limitation defence is raised but the defendant raises a defence of payments made to or on behalf of the plaintiff pursuant to provisions of the Motor Accidents Compensation Act 1999 s 83(5).

4. There is today before me a notice of motion. Someone, not I, has numbered the notices of motion that have been filed in these proceedings. This, according to that system, is the eighth motion that has been brought in these proceedings. The matter has been listed for hearing for five days commencing on Monday 11 November 2019, that is, in six working days’ time.

5. One of the earlier notices of motion was determined by her Honour Judge Gibb. Inter alia, her Honour made these orders:

“(3) …the plaintiff to attend a medical examination by Dr Rhys Gray on 3 October 2019 as arranged by the defendant on the following conditions:

The plaintiff may be accompanied by Dr Yuk Kai Lee per UCPR 23.5, on the condition that that Dr Lee is to observe only, and is to remain silent, not to participate in or take any role in the direction of examination; nor to interfere with the examination in any way.

The appointment having been arranged the subject of order, it is not to be re-scheduled for the convenience of Dr Lee.

Dr Gray may have with him at the examination any person whom he deems appropriate in his medical opinion and consistent with his duties as a medical practitioner.

The whole of Dr Gray’s 3 October 2019 examination is to be the subject of an audio and video recording.

There is to be no orthopaedic/medicolegal specialist conclave between Dr Rhys Gray and Dr Yuk Kai Lee.

(4) The audio and visual recording of 3 October 2019 examination is to be the defendant’s document, of which the defendant is to have full use and ownership.

(9) The defendant to serve any report by Dr Rhys Gray no later than 4 November 2019.”

Her Honour went on to confirm the hearing date of 11 November 2019.

6. The current notice of motion is brought by the Plaintiff. The current notice of motion seeks orders that the defendant and its insurer comply with subpoenas for production issued by the plaintiff and returnable on 25 November 2019. Those subpoenas for production each required the production of “A copy of the audio and visual recording of the medical examination of the plaintiff with Dr Rhys Gray on 3 October 2019.”

7. It is clear from what has occurred earlier and what has occurred today that there is much contention between the parties. The first thing I should point out is that it was completely unnecessary for the plaintiff to issue subpoenas for production addressed to the plaintiff and its insurer. A notice to produce served by the plaintiff on the defendant’s solicitor is adequate for the same purpose, as the rules provide that such a notice to produce has the same force as a subpoena. The next point I note is that I am told by learned counsel for the defendant, Mr O’Dowd, that neither he nor those instructing him have yet received from Dr Rhys Gray a report of the examination which Dr Rhys Gray conducted. Although Dr Rhys Gray’s report has not yet been received by the defendant’s solicitor, the defendant’s solicitor received either this morning or yesterday the audio visual recording of the examination conducted by Dr Rhys Gray on 3 October 2019.

8. The defendant has not filed or served any notices of motion seeking to set aside the subpoenas for production which have been served. There is no dispute that subpoenas for production have been served. However, as the argument arose before me today the defendant asked me orally to set aside the subpoenas for production addressed to the defendant and its insurer.

9. Learned counsel for the defendant pointed out that it is only after the close of the plaintiff’s case that the defendant needs to decide whether to go into evidence and, if so, as to what evidence is to be called. He pointed out, quite correctly, that classically counsel for a party may elect not to call evidence or tender evidence if it would no longer advance the case being mounted by the defendant. For example, concessions may be made by experts qualified by the plaintiff which concessions deny that there is any relevant causation between an accident or event relied upon by a plaintiff and the medical condition which the plaintiff contends was caused by the accident or event in question. Causation is often a problem in many personal injury proceedings. If concessions have been made by the plaintiff’s experts it may not be necessary for the defendant to call evidence. In the circumstances where the defendant may not call Dr Rhys Gray it is argued it is otiose to require the production of the audio visual recording of his examination of the plaintiff on 3 October 2019. It is also stated that it is even more otiose because the doctor’s report which is expected to be received on 4 November 2019, that is next Monday, must, in accordance with her Honour’s earlier orders, be served no later than that day. If no such report is served it would not be appropriate to order production of the audio visual recording because if the report was not to be relied upon then what occurred at that medical examination would no longer be contentious. Furthermore, the defendant could rely upon legal professional privilege to withhold production of the doctor’s report and any notes he made and therefore, it is argued, could withhold production of the audio visual recording of the examination.

10. All those contentions have validity if one approached the matter classically, and leisurely, but the rules which bind us all no longer permit such an approach to litigation. For example, UCPR 31.19 provides this:

“(1) Any party:

(a) intending to adduce expert evidence at trial, or

 (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek direction from the Court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

(4) This rule does not apply to proceedings with respect to a professional negligence claim.”

Subrule (4) is not here appropriate.

11. The other rule which must be considered is UCPR 31.30. This rule applies to proceedings in this Court and in the Local Court. Subrule (3) provides this:

“Unless the court orders otherwise:

(a) it is the responsibility of the party requiring the attendance for cross examination of the expert by whom an expert’s report has been prepared to procure that attendance; and

(b) the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which the attendance is required.”

Subrule (5) states this:

“A party who requires the attendance of a person as referred to in subrule (2):

(a) must inform all other parties to the proceedings that the party has done so at least 28 days before the date for hearing, and

(b) must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.”

12. The simple fact is that the defendant has already served four reports from Dr Rhys Gray. I am told that those reports are dated 1 July 2015, 25 March 2017, 18 February 2018 and 6 May 2019. The first three reports follow upon earlier examinations of the plaintiff by Dr Gray. The report bearing date 6 May 2019 is a supplementary report only. Therefore, the plaintiff can anticipate that even if Dr Rhys Gray’s report following upon his examination of the plaintiff on 3 October 2019 is not served, the defendant will or might rely upon the earlier reports which have already been served.

13. The question then becomes, even if the audio visual recording of the examination of 3 October 2019 is not relied upon by the defendant, is the plaintiff entitled to access to it and, if so, for what legitimate forensic reason? In evidence on this application is an email which the plaintiff himself sent to his own solicitor, the solicitor for the defendant and officers of the insurer of the defendant. Amongst other things it says this:

“I am very concern[sic] with the active role taken by Dr Gray as an IME. He said to me on tape that it was his responsibility to find the truth. His job was to find out if I’m being truthful.

As you will see in the tape, I feel as though I was under interrogation and being cross-examined. Which surprised me as Dr Gray is supposed to be an independent doctor.

He also said to me that he didn’t understand how I can mistake with my claim form with respect to being the driver. He also disputed my account of the accident and questioned whether I had break[sic] suddenly. He also didn’t believe the impact caused my injuries. I told him he was an IME doctor not a liability expert.

I was under extreme pressure at the appointment as I was being assessed and I had no support person and Dr Gray had his friend next to him. He would share information with his friend and discuss my matter with his friend.

There is a lot about the examination that I have found troubling.

I think he was fast. There is a section in the video tape that shows this. In terms of my weight, the weight scale was inaccurate, I told him this and he didn’t believe me. He checked his own weight and then disputed my assertion that the weight scale was inaccurate. He basically said I was being untruthful. It was not until his friend checked his own weight and agreed with me that the weight scale was inaccurate. The weight scale had me as being 118 kg, which is 5 kg off my weight.

He also put a lot of pressure and his physical force on my shoulders during the examination, which I found very unusual.”

14. There are some things said by the plaintiff which are readily explicable. A doctor’s job is to ascertain, inter alia, whether there is any causal element between an accident or event and a medical condition. Therefore, the speed at which the collision occurred may be highly relevant because it may enable the doctor to ascertain whether a subsequent complaint of, say, low back pain would be causally related to the event in question, if the pain came on later and the impact of the original event was extremely slight. However, there are other allegations made by the plaintiff in that email which raise issues between Dr Gray and the plaintiff which the plaintiff would be entitled to pursue by way of cross examination of the doctor even if the defendant elects not to rely upon Dr Gray’s report following upon his examination on 3 October 2019. If there be some suggestion of bias then it is possible that the bias might have been involved in the earlier examinations of the plaintiff by Dr Gray and such bias may have affected the opinion which he provided in his earlier reports. Therefore, it appears to me that there is a valid forensic reason for the plaintiff to have access to the video recording of Dr Gray’s examination of him on 3 October 2014. The very point that having that examination recorded both visually and audibly was to protect the doctor from an allegation of bias and to protect the plaintiff from the application of bias towards him.

15. It may be that the audio visual recording shows absolutely no bias or anything amiss and, if so, the defendant itself may wish to show the film. In any event, it has to be provided to the plaintiff. In other words, everything points in the positive direction that the audio visual recording of the examination of 3 October 2019 must be produced in obedience with subpoenas which have been issued. The application ore tenus to set aside the subpoenas is dismissed. I order the defendant to provide to the plaintiff by 4pm today a copy of the audio visual recording of the examination of the plaintiff by Dr Rhys Gray on 3 October 2019.

16. O’DOWD: I know that your Honour addressed the issue of the relevance with respect to whether or not Dr Gray’s evidence is going to be relied upon.

HIS HONOUR: You’ve served it. Unless you say we definitely won’t be relying upon anything at all from Dr Gray.

O’DOWD: I understand that - and I don’t wish to canvas your Honour’s rulings but we would like to see the report and if it’s only Monday before we make the determination. If those orders could be delayed until 4pm Monday that gives us a chance to do that.

HIS HONOUR: No. I made the order because the order that I made isn’t postulated on your serving a report from Dr Gray on Monday. It’s also the fact that you have already served other reports from Dr Gray and insofar as the audio tape may or may not, who knows, show some bias towards the plaintiff by Dr Gray the plaintiff is entitled to have access to it. It may be that his view of what occurred is completely warped.

O’DOWD: May it please the Court.

HIS HONOUR: In which case, as I said, you’ll probably want to show. The defendant will probably want to show. Did I state that it had to be served by 4pm?

17. That audio visual recording is to be served by 4pm today, 1 November. I order the defendant to pay the plaintiff’s costs of the notice of motion filed on 28 October 2019.

EXHIBIT #1-1 AFFIDAVIT OF NAOMI DEVORAH TANCRED AFFIRMED ON 30/10/19 TENDERED, ADMITTED WITHOUT OBJECTION

I direct that exhibit 1-1 and A-A be returned to the parties.

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Amendments

11 February 2020 - Typographical error in dating

Decision last updated: 11 February 2020