Babic v Swindale
[2007] WADC 166
•13 September 2007 typed from tape and edited by Trial Judge
BABIC -v- SWINDALE [2007] WADC 166
| Link to Appeal : |
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| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 166 | |
| Case No: | CIV:1862/2006 | 11, 12 & 13 SEPTEMBER 2007 | |
| Coram: | GROVES DCJ | 13/09/07 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce evidence not earlier disclosed refused | ||
| PDF Version |
| Parties: | DINKO BABIC KENNETH GRIFFITHS SWINDALE |
Catchwords: | Tort Motor vehicle accident Expert evidence Disclosure of medical evidence |
Legislation: | Rules of the Supreme Court O 36A, r 2 |
Case References: | Boyes v Collins (2000) 23 WAR 123 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KENNETH GRIFFITHS SWINDALE
Defendant
Catchwords:
Tort - Motor vehicle accident - Expert evidence - Disclosure of medical evidence
Legislation:
Rules of the Supreme Court O 36A, r 2
Result:
Leave to adduce evidence not earlier disclosed refused
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Simon Walters
Defendant : Williams Handock
Case(s) referred to in judgment(s):
Boyes v Collins (2000) 23 WAR 123
(Page 3)
1 GROVES DCJ: The following are my extempore reasons in relation to disclosure of certain medical evidence in the possession of the defendant. The plaintiff sues the defendant for damages for personal injuries said to arise out of a motor vehicle collision on 7 June 2005. The defendant admits that the collision was caused by his negligent driving but denies that the plaintiff suffered injury or any loss or damage as a consequence of the accident. The defendant does not allege that the plaintiff was fraudulent or malingering.
2 It is thus an "action for personal injuries" as that expression is defined in O 36A, r 1 of the Rules of the Supreme Court. The plaintiff entered the action for trial on 10 November 2006. There followed a pre-trial conference on 6 February 2007. The proceedings were then referred to a listing conference on 2 April 2007. On that date the action was set down for trial for four days commencing 11 September 2007.
3 The trial commenced before me on Tuesday, 11 September 2007. After almost two and a half days the plaintiff has closed his case. The defendant's counsel has foreshadowed that evidence will be called including that from Doctors Rosenthal, Vaughan and Gope. The plaintiff's counsel thereupon raised an issue as to whether those doctors should be permitted to give medical evidence as to certain matters because the substance of that evidence was not disclosed in writing within the time prescribed by O 36A or there having been no direction given or within a reasonable time before trial.
4 The issue arises in this way. Order 36A, r 2(2) provides:
"Unless the court otherwise directs, a party must serve on the other parties in accordance with this Rule copies of all medical reports the substance of which that party intends to rely on at the trial or hearing."
5 Subrule (3) indicates the time for serving such medical reports which in the circumstances of this case as I am informed by plaintiff's counsel, is not later than 14 days before the pre-trial conference. Subrule (5) provides:
"Except with leave of the court or pursuant to a direction of the court, or where all other parties agree, no witness may give medical evidence at the trial or hearing of a cause or matter unless the substance of that evidence has been disclosed in writing to all other parties within the time limited by a direction
(Page 4)
- under paragraph (4) or where no such direction has been given, a reasonable time before trial."
6 In the trial so far there has been evidence that the plaintiff was the subject of covert surveillance on a number of occasions from at least 11 March 2006 to as recently as 11 August 2007. That surveillance has been recorded and has been shown to doctors and in court on DVDs. The plaintiff's solicitors received from the defendant's solicitors surveillance DVDs on 21 August 2007.
7 The requirement of O 36 was complied with so far as the delivery of the surveillance footage is required.
8 The plaintiff's solicitors had received from the defendant's solicitors prior to the pre-trial conference reports of Doctors Rosenthal, Vaughan and Gope. Presumably the plaintiff had attended on these doctors at the request of the defendant's solicitors for the purpose of obtaining medico-legal reports.
9 In the reports provided, there was no reference to surveillance. However, under cover of a letter, referred to by counsel but not seen by me, from the defendant's solicitors dated 21 August, the plaintiff's solicitors received additional reports. Those reports were:
Dr Rosenthal dated 11 September 2007 and 6 July 2007;
Dr Vaughan dated 31 October 2006;
Dr Gope dated 17 January 2007.
10 Each of these reports, again not seen by me, apparently refer to and make comment on the surveillance evidence. I am told that in fact Dr Vaughan made two reports dated 31 October 2006. One does not make reference to the surveillance evidence. That report was earlier disclosed in the usual way. The other report of that date, making reference to surveillance, was not until recently disclosed.
11 On the basis that the defendant did not disclose as required and has not been granted leave of the court, plaintiff's counsel has thus foreshadowed that the plaintiff will object to that evidence of those doctors being led which comments upon the surveillance footage.
12 The substance of those reports was not disclosed prior to the time prescribed. The plaintiff does not agree to its admission. Leave has not been granted for its admission and disclosure was not made it is said within a reasonable time before trial.
(Page 5)
13 In response, defendant's counsel contends:
(1) that the reports do not contain "medical evidence" and therefore need not be disclosed as required by O 36A and
(2) if it is necessary then the defendant in response now makes application for leave for the purpose of leading that evidence.
14 As to the first point, O 36A r 1 defines "medical evidence" to mean "expert evidence on medical matters". "Medical report" is defined to mean "a report containing medical evidence." I have not seen any of the reports obtained by the defendant.
15 I am told by defence counsel that the substance of the reports earlier disclosed to the plaintiff's solicitors is that the doctors have expressed the opinion, presumably based on the history given by the plaintiff, the doctors' examination and any radiological evidence, that there is nothing wrong with the plaintiff and that he is exaggerating his alleged symptoms.
16 It is said further that in the recently disclosed reports the doctors have expressed the opinion that the surveillance simply confirms their opinions earlier expressed.
17 In my view the expression of an opinion by an expert witness, as these doctors are, clearly is "expert evidence", on medical matters and is thus "medical evidence". That is so in the case of the earlier disclosed reports and thus it follows that it is so in respect of the later disclosed reports.
18 If it were otherwise then no opinion expressed by such an expert would be the subject of O 36A. That cannot be the meaning, purport or effect of O 36A. These reports are not hybrids as defendant's counsel contends and nor do they fall into any "special category". There is no special category.
19 Accordingly I conclude that these reports do fall within the definition of medical evidence and medical reports
20 As to the defendant's application now seeking leave to lead the evidence recently disclosed the issue is, should I exercise my discretion in favour of the defendant?
21 Defendant's counsel claims that it is a legitimate tactic to hold back such reports. It is also said that if it were otherwise all manner of artificial
(Page 6)
- devices may or would be instigated to get around the requirement for disclosure.
22 Since the decision of the Full Court of the Supreme Court of Western Australia in Boyes v Collins (2000) 23 WAR 123 I do not think that such tactics as defendants in actions for personal injuries might attempt to adopt are legitimate.
23 The clear indication of the Full Court, which I unhesitatingly accept, bearing in mind that it was an appeal from an earlier decision of mine, was that a "cards on the table" approach in personal injury cases is to be favoured.
24 That case dealt with the disclosure of video film to the plaintiff as distinct from medical reports in this case. Nevertheless, I do not see that any distinction is to be drawn from the differing circumstances.
25 In Boyes v Collins, dealing with O 36, r 4, the Full Court said that the court should be biased towards disclosure subject to there being persuasive grounds by reason of the particular circumstances of the individual case to otherwise order.
26 Furthermore, at p 146 [77], Ipp J, with whom Pidgeon and Wallwork JJ agreed said after quoting O 36A, r 2(2) and (5):
"In my view, if the medical witnesses had seen the video film, or have been told about it, and that has influenced their opinions in any way (by confirming or reinforcing the opinions they had expressed, or altering or negating them) those witnesses should not, without leave, be allowed to testify as to those opinions."
27 Clearly, that statement is apposite to the circumstances here. Specific reference is made to "confirming or reinforcing the opinions" which, so I am told by defendant's counsel, is the situation here. Also, apposite is the reference by Ipp J at [61] to the potential for unfairness to a party, and at [82] and [83] to the unfairness in regard to settlement negotiations.
28 Now then, it might be argued here that the plaintiff from the content of the earlier disclosed reports knows the opinion which the doctors will express and is thus not taken by surprise by their opinions in the later disclosed reports. That, in my respectful view, is not to the point.
(Page 7)
29 Fairness dictates that for all the reasons expressed in Boyes v Collins that the plaintiff should be aware of all the evidence which he or she may have to meet at trial. It is no longer the case that a defendant in such a case can hold cards close to the chest. Those days are now long gone.
30 The reports were disclosed on 21 August 2007. The trial commenced on 11 September 2007. That is barely 21 days, including weekends. That, in my opinion, is not, given the significance of the issue, a reasonable time before trial.
31 Accordingly, I decline to accede to the defendant's application for leave. The defendant will be precluded from leading from Drs Rosenthal, Vaughan and Gope, the substance of their reports to which objection has been raised.
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