Layland v Foster

[2006] NSWDC 31

Reported Decision: 3 DCLR (NSW) 381

District Court

CITATION:	Layland v Foster [2006] NSWDC 31
HEARING DATE(S):	22 August 2006
JUDGMENT DATE:	12 September 2006
EX TEMPORE JUDGMENT DATE:	08/22/2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Hearing vacated and adjourned; No order as to costs
CATCHWORDS:	EVIDENCE - Admissibility of a report issued under the Motor Accidents Compensation Act 1999 where the MAS assessor is a competent but not compellable witness, and not available to be cross-examined - Civil Procedure Act 2005 s 58: Dictates of Justice - Service of medical reports: r 31.18(1)(c) UCPR - Mere possession of a report by a party is not sufficient, and actual service is required
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Evidence Act 1995: s 135 Civil Procedure Act 2005: s 58 Uniform Civil Procedue Rules (UCPR): r 31.18(1)(c)
CASES CITED:	Roach v Page [2003] NSWSC 907 Young v Coupe [2004] NSWSC 546
PARTIES:	Bryan Kenneth Layland (Plaintiff) Joshua Foster (Defendant)
FILE NUMBER(S):	1287/2006
COUNSEL:	Mr Heazlewood (Plaintiff) Mr Bellew (Defendant)

JUDGMENT

HIS HONOUR: This will be an extempore ruling on a preliminary issue: the admissibility of a medical report issued by an MAS assessor under the Motor Accidents Compensation Act 1999.

1. I was asked to rule on an issue at the commencement of the trial, namely the admissibility of a report of Dr Carr dated 4 February 2005. Dr Carr prepared that report in his capacity as an MAS assessor, for the purposes of an assessment of whole person impairment under the Motor Accidents Compensation Act 1999.

2. It was not disputed that this report was an expert report for the purposes of r 31.17 of the UCPR.

3. The issue requires a preliminary ruling because the defendant seeks to rely on this report as to an issue which “looms as an important, if not as the primary issue in the case”, namely causation. That is, causation between the motor accident and the plaintiff’s ongoing incapacity.

4. The defendant says, in a nutshell, that it served the report in accordance with the rules and the plaintiff, not having advised the defendant until today of an inability to make the doctor available for cross-examination, the report is prima facie admissible.

5. I note in this regard that the doctor, although served with a subpoena, has declined to give evidence, as he is entitled to do by reason of recent amendments to the relevant legislation. Those amendments make the doctor competent as a witness but not compellable.

6. The defendant says that although prejudicial, to admit the report would not give rise to unfair prejudice: s 135 of the Evidence Act.

7. I was referred to several cases: Young v Coupe [2004] NSWSC 546 and Roach v Page [2003] NSWSC 907. I also had regard to s 58 of the Civil Procedure Act 2005, which requires the Court in the application of the rules to apply the dictates of justice, as set out in that section.

8. In my view it is critical in the present case that the issue to which this report goes is a central issue. It troubles me that in respect of such an issue the plaintiff should be deprived of the opportunity to test the opinion of that doctor on that central issue by way of cross-examination.

9. That position is exacerbated by the circumstance that the purpose of the report is governed by statutory constraints; by that I mean that it is an opinion necessarily governed by guidelines provided for in the legislation and other MAA guides, including the application of AMA4. The doctor’s opinion, on general medical grounds, may well be different when the usual principles of causation at common law are to be applied.

10. In the exercise of my discretion, therefore, I will not allow the report into evidence as in my view its probative value is outweighed by the unfair prejudice its admission would visit upon the plaintiff.

11. There is another reason. I do not agree with the defendant that this report has been properly served within the requirements of the rules.

12. Rule 31.17 clearly contemplates that the report contains material which it is intended to adduce at trial.

13. That requires, in my view, express service for that purpose under r 31.18(1)(c). It is not sufficient for the party to show, as it did in this case, that the other party has possession of the report and rely on the other party to assume the report is to be relied upon at trial.

14. This is particularly so having regard to the obligation on that other party to give notice of a requirement for cross-examination, together with the further onerous obligation imposed by r 31(19)(c) of arranging for that doctor’s attendance at court.

15. I am, however, cognisant of the prejudice this ruling will occasion to the defendant and for that reason I propose to vacate the hearing date.

16. In my view, both parties have contributed to the costs wasted by the adjournment.

17. I make no order as to costs wasted by the adjournment.

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