Donald v Rail Corporation of New South Wales (No 10)

[2015] NSWSC 1938

Supreme Court

New South Wales

Medium Neutral Citation:	Donald v Rail Corporation of New South Wales (No 10) [2015] NSWSC 1938
Hearing dates:	20 – 23; June 2015; 2 – 5; 9 – 10 November 2015
Date of orders:	10 November 2015
Decision date:	10 November 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I rule that the concurrent evidence of the medical experts is admitted as evidence in the trial.
Catchwords:	EVIDENCE – admissibility of oral expert evidence – where plaintiff’s expert not required for cross-examination – whether leave should be granted for plaintiff to lead additional evidence in chief under r 31.28 Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant)
Representation:	Counsel: DR Campbell SC with S Longhurst (Plaintiff) RJ Burbidge QC with A Casselden (First Defendant) M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff) Hicksons Lawyers (First Defendant) Moray & Agnew Lawyers (Second Defendant)
File Number(s):	2010/349997

ex tempore judgment (revised)

1. Yesterday afternoon I took concurrent evidence from Dr Bodel and Dr Maxwell, each of whom is an orthopaedic surgeons, on the voir dire.  I took the concurrent evidence on the voir dire because Dr Bodel was not required for cross‑examination by either of the defendants, although the plaintiff did require Dr Maxwell for cross‑examination.

2. Given that neither defendant required Dr Bodel, I was apprehensive that Mr Campbell SC, who appears for the plaintiff, required leave to lead evidence in chief in accordance with the requirements of r 31.28(3) and (4) of the Uniform Civil Procedure Rules 2005 (NSW). The basis of that apprehension related to evidence I heard earlier from expert ergonomists and matters raised in argument at different points, by Mr Campbell, about the insidious effect of vibration of the jackhammer upon the human body.

3. In short, there seemed to be a theory of the case being propounded through some of the evidence that the mechanism of injury was, as I have said, the insidious, perhaps subtle, effects of vibration, rather than the exertion of effort and strain in the performance of heavy work.

4. I heard argument about the leave application and decided to admit the evidence on the voir dire before making a ruling in relation to whether leave should be granted, bearing in mind the condition of the grant of leave under the rule is the establishment of exceptional circumstances.

5. Having heard the evidence and considered it overnight, I am rather of the view that the substance of the evidence led by Mr Campbell from Dr Bodel was covered in the various reports that he has written, which had been tendered already as Exhibit J.  Essentially that opinion was put taciturnly, as it so frequently is in medical reports, but is to the effect that the plaintiff's back injury was caused by the nature and conditions of his employment.

6. I should interpolate that, in a joint report of Dr Maxwell and Dr Bodel admitted as part of Exhibit 1D14A, both doctors agreed that the plaintiff's injury consisted of an L5‑S1 disc protrusion which “appears to have occurred on or about 8/5/2008” [sic].

7. In his initial report of 12 January 2011, Dr Maxwell had expressed the view that the plaintiff had suffered a disc protrusion in the course of his work on 13 May 2008.  That date is the correct date.  He continued in his report, "disc protrusions occur at the degenerate disc where there has been some gradual damage to the posterior fibres of the annulus."  As it turned out, the evidence that Mr Campbell led from Dr Bodel really consisted of, in substance, no more than an exposition upon those matters already dealt with in the reports.

8. In Dr Bodel's last report forming part of Exhibit J, he said there is a causal link between the nature and conditions of this gentleman's work and the aggravation of the underlying degenerative change and the need for surgery that occurred as a result of that work injury.  As I have said, the evidence really consisted of a further explanation of the mechanism of that relationship.

9. I do not think that r 31.28 requires leave every time an expert is called to expand upon what is written in the report. The question is, obviously, one for judgment whether the report substantially covers the evidence in chief of the expert and issues of fairness are involved. In my view, given that cases develop as the evidence comes out, it would be unrealistic to require a grant of leave for exceptional circumstances each time counsel calling an expert wished to have the benefit of a clearer exposition of the written opinion in the light of the evidence as it has fallen out and I do not think the rule is designed to cover that situation. Clearly, it is designed to cover situations where some new issue likely to catch opposing parties by surprise is sought to be led. A good example of that would have been Mr Campbell seeking to elicit evidence about the physiological effects of the vibration of a jackhammer. That did not occur.

10. In deference to Mr Burbidge's argument, I accept that in every case involving medical opinion, the history which a doctor has assumed is likely to be of vital importance.  This case is no different.  It is tolerably clear that I have heard more about the development of Mr Donald's back condition, perhaps, than the doctors have received in history.  However that may be, it remains as I have remarked in an earlier judgment, a question of fact whether the history assumed by Dr Bode,l and the other medical experts, is sufficiently like the facts as proved to validate their opinion.

11. I acknowledge that Dr Maxwell has been asking for some time to see the original films of the CT scan taken at about the end of June 2008.  He says, and I accept, that a specialist surgeon will often be in a better position to assess the significance of the images than a generalist radiologist.  However, I do not think that the defendant has been disadvantaged by the absence of those films.  Dr Maxwell saw the MRI films and on the basis of them, I interpolate they are a different test from a CT scan, moved quite significantly from the position expressed in the joint report and, for that movement, no leave was sought I wryly observe.

12. The third point Mr Burbidge made was that there is a difficulty in the development of the history because there is no date given in the evidence, as it were, that the doctors could comment upon in relation to say when there may have been the initiation of the significant left leg pain, a critical indicator of the time of the occurrence of the protrusion.  In particular, it is left up in the air as to when that occurred which may be very significant, given the plaintiff's continued engagement in his activities in the gym and his performance of work for a subsequent employer.

13. I think that issue really falls into the first category as the importance of the history and that is, no doubt, a matter which can be dealt with in addresses.  Indeed, given what Dr Bodel said about the significance of the inception of leg pain that may be a critical factor which both parties will have to deal with.  Dr Bodel did indicate some views about the jackhammer which has been admitted into evidence and about its suitability for workers to use over long periods.  That is a matter which doubtless can be addressed by both parties, but it is not the plaintiff's case that it was negligent to require him to jackhammer, per se.

14. Finally, Mr Burbidge referred to the evidence which Mr Campbell had been objecting to about the significance of the pattern of complaints of injury at the first defendant's workplaces during 2008.  Those figures will show, at least so far as reported injuries are concerned, that there was a low incidence of back injury and that none of the back injuries, apart from Mr Donald's, seem to involve a use of the jackhammer.  However that may be, I think that is a matter which, now that Mr Campbell has accepted that the figures can go in for all purposes, that the defendant can use to its advantage, perhaps.

15. But overriding all of these arguments, it does seem to me, that the defendant had the advantage of the evidence being taken concurrently.  Dr Maxwell gave evidence and was given every opportunity to comment upon the different views that Dr Bodel expressed and, indeed, questions were directed to him to the same effect as those put to Dr Bodel.  He took a different view from Dr Bodel about most of the matters elicited from Dr Bodel by way of additional evidence in chief and, to my mind, Dr Maxwell's evidence demonstrated that he was well able to deal with the additional evidence from Dr Bodel to the extent to which anything might be seen as new and that the defendant, with respect, is not at any disadvantage in the process of Dr Bodel giving his additional oral evidence.

16. For these reasons, I find that it is not necessary that the plaintiff be given leave to introduce the additional evidence of Dr Bodel and, accordingly, I rule that the concurrent evidence of the medical experts is admitted as evidence in the trial.

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Decision last updated: 16 December 2015