Donald v Rail Corporation of New South Wales (No 4)
[2015] NSWSC 1681
•05 November 2015
Supreme Court
New South Wales
Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 4) [2015] NSWSC 1681 Hearing dates: 20 – 23 June 2015; 2 – 5 November 2015 Date of orders: 05 November 2015 Decision date: 05 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: Dr Adams report of 1 July 2010 is admitted as Exhibit G. I order that the assumptions narrated by Dr Adams in his report will stand only as evidence of the assumptions he made and not as evidence of the truth of them.
Catchwords: EVIDENCE – admissibility of expert report – application of “basis rule” – where assumptions made by expert may not come up to proof in evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844;
Ramsay v Watson [1961] HCA 65; 108 CLR 642Category: 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)
Solicitors: Acorn Lawyers (Plaintiff);
RJ Burbidge QC with A Casselden (First Defendant);
M Windsor SC with R Perla (Second Defendant)
Hicksons Lawyers (First Defendant);
Moray & Agnew Lawyers (Second Defendant)
File Number(s): 2010/349997
ex tempore judgment (revised)
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Mr Burbidge, QC, has objected to the tender of a report of Dr Neil Adams of 1 July 2010. Dr Adams is a professional ergonomist, if I may say, well known in this area of practice. The objection from learned senior counsel is by application of what is often referred to as the “basis rule”, exemplified by the decision of the High Court of Australia in Ramsay v Watson [1961] HCA 65; 108 CLR 642. That is to say, if the assumptions made by the expert are not otherwise proved in evidence, then the opinion of the expert is, not simply of no weight, but, rather, inadmissible.
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Certainly at this stage, where the objection is taken, I have heard virtually all of the lay evidence, including the extensive evidence of the plaintiff. And with great respect, there is something to be said for the argument that many of the matters assumed by Dr Adams, on the basis of the information with which he was provided, are unlikely to come fully up to proof.
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Having said that, it seems to me that the question of whether the assumptions made by Dr Adams are sufficiently like the case that the plaintiff proves to validate, if I may use that expression, all of the opinions expressed by Dr Adams, is itself a question of fact: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844. That question of fact can only be decided at the end of the case. This case, is in that regard unlike Ramsey v Watson, where it was patently clear that the facts assumed by the defendant's medical expert could not be made good at the trial because the witnesses necessary to prove those facts were upon the statement of the defendant's counsel, not to be called to give that evidence at the trial.
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There remains a question whether, despite the obvious differences between the assumptions made by Dr Adams and the general thrust of the evidence in the case, his assumptions are sufficiently like the facts as they are finally proved to be. For those reasons I think it is appropriate to admit his report into evidence, subject, however, to an order to protect the defendant's position, having the effect of excluding the operation of s 60 of the Evidence Act 1995 (NSW).
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Accordingly, Dr Adams report of 1 July 2010 is admitted as Exhibit G. I order that the assumptions narrated by Dr Adams in his report will stand only as evidence of the assumptions he made and not as evidence of the truth of them.
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Decision last updated: 11 November 2015
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