Kim Fisher v Sandara Rotheraine

[2009] NSWDC 270

Reported Decision: 10 DCLR (NSW) 26

District Court

CITATION:	Kim Fisher v Sandara Rotheraine [2009] NSWDC 270
JUDGMENT DATE:	31 August 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Medical reports from medical practitioners to insurers or solicitors are not admissible. Medical reports from medical practitioners to other medical practitioners are admissible.
CATCHWORDS:	CIVIL LAW - evidence - admissibility of medical reports from one medical practitioner to another and medical reports from medical practitioners to insurers or solicitors - argument that reports are admissible under business records exception to hearsay rule - argument that reports were not served in accordance with UCPR 31.28
LEGISLATION CITED:	Evidence Act 1995 s 63, s 66A, s 69 Uniform Civil Procedure Rules 2005 r 31.28
PARTIES:	Kim Fisher Sandara Rotheraine
FILE NUMBER(S):	2622/05
COUNSEL:	Ms Welsh Mr B Kelleher

JUDGMENT

1. Mr Kelleher for the defendant has tendered two bundles of documents. One comprises medical reports from one medical practitioner to another. I marked that bundle MFI 4A. The second bundle, which I marked MFI 4B, comprised medical reports from medical practitioners to insurers or solicitors.

2. As for MFI 4B, Mr Kelleher relies upon the exception to the hearsay rule contained in s 69 of the Evidence Act 1995, which deals with business records. It is apparent that all of the documents in MFI 4B were prepared or obtained for the purpose of conducting or in contemplation of or in connection with legal proceedings. Mr Kelleher realistically submitted that that must be the inference from the documents themselves and had nothing further to say about their admissibility under s 69.

3. In my opinion, the documents comprised in MFI 4B, or at least those portions of the documents tendered by Mr Kelleher, failed because of the hearsay rule and are not admissible and I reject that tender. I will return MFI 4B to you, Mr Kelleher.

4. MFI 4A, on the other hand, as I said, comprised documents passing between medical practitioners. It is apparent that they do comprise business records and Ms Welsh realistically, and in my opinion correctly, did not submit otherwise. She did, however, object that they comprised experts’ reports which had not been served in accordance with UCPR 31.28.

5. There is some force in that argument, because each of them is a medical report. However, Mr Kelleher points out that he does not tender any component of those reports which comprises an opinion by an expert. All he tenders are the components of the reports which contain histories taken by the various doctors by the plaintiff. He, therefore, tenders the material in the form of admissions by the plaintiff made to the medical practitioners.

6. Although the form of the documents do comprise medical reports, I am of the view that UCPR 31.28 does not apply to the portion of the documents which Mr Kelleher tenders and I overrule the objection, based upon UCPR 31.28.

7. Another basis for the tender was reliance by Mr Kelleher on s 66A of the Evidence Act which provides that the hearsay rule does not apply to evidence of representations by a person, being contemporaneous representations about the person’s health. It is clear that the representations relied upon by Mr Kelleher in MFI 4A comprise assertions made by Ms Fisher concerning her health. In addition, in my opinion, they are in the form of admissions by the plaintiff, which were made to the various medical practitioners concerned.

8. It seems to me that these documents fall within the exception to the hearsay rule contained in the business records provision, as well as s 66A, as well as within s 63 of the Evidence Act.

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