NAB v Garry

[2002] NSWSC 1265

CITATION:	NAB v Garry & anor [2002] NSWSC 1265 revised - 10/02/2003
FILE NUMBER(S):	SC 12479/98
HEARING DATE(S):	07/08/2002
JUDGMENT DATE:	8 August 2002
PARTIES :	National Australia Bank John Joseph Phillip Garry and Marilyn Gail Garry Elders Limited John Davis and others
JUDGMENT OF:	O'Keefe J

COUNSEL :	Plaintiff and first cross defendant - Mr D Williams Defendants - Mr R Walker Second cross defendant - Mr J Stevenson Third cross defendant - Mr J Kelly SC with Mr G McNally
SOLICITORS:	Plaintiff and first cross defendant - Mr Dale J Kemp: Dibbs, Crowther & Osborne Defendants - Mr John Conti: Boyd House & Partners Second cross defendant - Mr Andrew Kingsford Smith: Henry Davis York Third cross defendant - Mr Philip Harris: Harris McHugh Lawyers (Tamworth)
CATCHWORDS:	Evidence - Expert evidence - Clinical psychologist - Report - Test for admissibility - Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 explained in part - Words and phrases - sure - unfairly prejudicial
LEGISLATION CITED:	Contracts Review Act 1980; s9(2) Evidence Act 1995; s 135
CASES CITED:	Clark v Ryan (1960) 103 CLR 486 Carter v Boehm, 1 Smith LC, 7th ed. (1876) p 577 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Reg v Camm (1993) 1 QLJ 136 R v Parker (1912) VLR 152 Reg v Silverlock (1894) 2 QB 766 H G v The Queen (1999) 197 CLR 414
DECISION:	The report by the clinical psychologist admitted, subject to certain exclusions.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

8 August 2002

12479/98 – NATIONAL AUSTRALIA BANK v JOHN JOSEPH PHILIP GARRY AND ANOR

1 HIS HONOUR: A report dated 6 April 2000, prepared by a clinical psychologist, E A Petroni, and relating to the first defendant (Mr Garry) has been tendered on behalf of Mr Garry. Objection has been taken to the admission of the report by each of the parties against whom it has been tendered. I have already rejected it as against the second cross-defendant (Mr Davis) and the third cross-defendant (Elders) on the basis that the causes of action pleaded against them and the particulars of such causes of action that have been given do not extend to the matters dealt with in the report.

2 The bases on which the plaintiff (NAB) opposes the admission of the report are:

1. That it is not sworn.

2. Its form is not such as to qualify it for admission. This is because the actual basis on which the opinion has been formed is not expressed in the report.

3. There are parts of the opinions expressed in it that do not fall within the expertise of a clinical psychologist. In particular it is said that there is nothing in the report on which to base the opinions expressed concerning the intellectual capacity of Mr Garry at material times.

4. The diagnosis of post-traumatic stress disorder relates to a somewhat vague disorder and in the light of the history cannot be seriously regarded. The history to which reference is made includes that Mr Garry has never sought medical treatment for the disorder, which appears to have been discovered (or diagnosed) only some 11 years after the event said to give rise to it; namely, a life-threatening involvement in a bush fire that resulted in severe injuries to Mr Garry in 1989, as detailed in paragraphs 14-27 of his affidavit of 20 April 2000.

5. An additional basis that was added as a later stage in the argument was that the history given to the clinical psychologist is not consistent with the evidence given to date in the proceedings.

APPLICABLE LAW

3 In Clark v Ryan (1960) 103 CLR 486 Dixon CJ said:

"The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be better put than it was by J W Smith in the notes to Carter v Boehm , 1 Smith LC, 7th ed. (1876) p 577. ‘On the one hand,’ the author wrote, ‘it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study in order to the attainment of a knowledge of it.’ Then after the citation of authority the author proceeds: ‘While on the one hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject matter, the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.’ Adopted by Harding ACJ in Reg v Camm (1993) 1 QLJ 136.

4 In R v Parker (1912) VLR 152, one of the cases establishing the evidentiary use of fingerprints to prove identity, Cussens J in that connection said that expert witnesses may give in evidence statements based on their own experience or study but they cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law. To this should be added the observation made by Vaughan Williams J during the argument in Reg v Silverlock (1894) 2 QB 766, viz. ‘No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people’ (at 769). The words ‘profession or course of study’ have of course a wide meaning and application; see per Lord Russell CJ (at 771).” (supra at 491-492).

5 The judgment of Menzies J (supra at 501-502) is to like effect.

6 The law in relation to the admissibility of reports prepared by experts has recently been reviewed and authoritatively stated in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 by Heydon JA with whom Priestley Powell JJA agreed. Heydon JA said:

" ...... in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions that are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact finding may be subverted...
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’ expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibility proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they may be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialized knowledge. If the Court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialized expert knowledge, but to use Gleeson CJ’s characterization of the evidence in H G v The Queen (at 428), on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.’” (supra at 743-744).

7 In two places in the forgoing passages Heydon JA uses the word “sure”, viz. in the phrases "it is not possible to be sure" and "if the court cannot be sure". Some argument directed to the rejection of the report called attention to those phrases.

8 Makita was a civil case in which the relevant standard of proof was on the balance of probabilities. In the light of this Heydon JA cannot have been using the word "sure" in the sense of "having no doubt" or "certain" or "true beyond any doubt". Such a meaning would be redolent of the criminal standard of proof. The word as used in the context of that case should be seen against the background of the civil standard of proof and bear the meaning of "knowing" in the way that it is necessary to know or accept a factual conclusion in a civil case.

9 The forgoing is the law which I apply to the consideration of the report of the clinical psychologist.

THE REPORT - ANALYSIS

10 An examination of the report shows that it was prepared by a person who has university qualifications to the postgraduate level in the field of scientific endeavor of psychology. This is a well recognised scientific field. The report writer was a Fellow of the Australian College of Clinical Psychologists, a distinction which he attained after some 22 years in practice. His employment history as a Clinical Psychologist is extensive and he has published in the field. Since 1982 until the time of his death on 26 August 2000 Mr Petroni had been involved in full time practice in Forensic Psychology, Clinical Diagnosis and in treatment through psychological therapy. The field with which he was concerned clearly falls within the description of a field of specialised knowledge in which he has demonstrated that by reason of his specific training, study and experience he is an expert.

11 To the extent that the opinions which he has expressed relate to a diagnosis of Post-Traumatic Stress Disorder with Reactive Depression and Chronic Stress Disorder, they fall within the area of expertise in which Mr Petroni has demonstrated that he was an expert.

12 In his report Mr Petroni states that Mr Garry gave him a history which is then recorded in the report. That history extends over the course of some five pages. It includes a personal history, a history relating to the traumatic fire event in which he was involved in 1989, his subsequent decline, the effects of the event and its sequelae upon him in relation to his working capacity and the operation by him of his country properties, as well as his relationship with the NAB.

13 It also includes details of his observations and clinical impressions as a clinical psychologist. However, in the final paragraph on page 6 under the heading “Presentation and Clinical Impressions”, Mr Petroni expresses his view as to the credibility of the first defendant. That paragraph in my view runs counter to what was said by the High Court in Clark v Ryan (supra) and by Heydon JA in Makita (supra) and should not be admitted. I exclude that portion of the report.

14 In my opinion, the diagnosis in the report is not only within the ambit of expertise of the writer of the report but also supported by the clinical history which was taken by him.

15 The process of reasoning of Mr Petroni is clear from the report, namely given the event and its sequelae as described to him and applying his specialised knowledge in the light of his clinical observations as recorded, he has come to the conclusion stated in the report. I do not think that his conclusion is a combination of speculation, inference or of personal and second-hand views as to the credibility of Mr Garry or that the conclusion or reasoning process went beyond Mr Petroni's field of expertise in the manner dealt by Gleeson CJ in H G v The Queen (1999) 197 CLR 414 at 428.

16 Counsel for NAB has submitted that the report should be rejected because of the following passage:

"On the basis of my careful scrutiny of the presentation notes and the anecdotal and clinical evidence, I am of opinion that Mr Garry sustained Posttraumatic Stress Disorder following the fire of December 1989.”

17 Properly read I do not think that this passage justifies the submissions based on it. If ”the careful scrutiny” to which the report writer refers relates to Mr Garry, it is set out in detail in the report. However if, as I think to be the case, it relates to the presentation notes, namely, the history that was taken by the clinical psychologist, then it is perfectly proper to express in the report that he has had regard to what was told to him, be it anecdotal or otherwise, in addition to what he saw, namely, the clinical evidence. That is, in my view, what is meant by the phrase “the anecdotal and clinical evidence”.

18 In light of the whole report I do not think that the passage to which I have just referred justifies the court properly to reject the whole report.

19 There are, however, some other conclusions expressed by Mr Petroni that, in my opinion, go beyond the area of expertise that he has demonstrated. The relevant passages in this regard commence at the foot of page 7 of the report beginning "throughout his career as a sheep farmer," through to "extra care in advising him in relation financial dealings." As these passages go beyond the field of expertise of Mr Petroni. They are excluded.

20 Mr Petroni is dead and cannot be cross-examined. His report has not been verified by affidavit but that does not, in my opinion, constitute a significant or any real bar to its admission into evidence. Day in and day out reports of medical and like experts are admitted in this court without supporting affidavits. The absence of an affidavit is not, in my opinion, a source of any prejudice to the NAB and the reports should not be excluded on this ground.

21 Whilst it is true that there are some divergences between the history as taken by Mr Petroni from Mr Garry, and some of the evidence to date, so too are there divergences in Mr Garry's own evidence before this court. One of the tasks of the court will be to resolve divergences and differences in the various testimonies. This will apply to Mr Garry's evidence as well as to the evidence of other witnesses and will apply both to their evidence internally and their evidence when it is contrasted with the evidence of another or other witnesses.

22 In light of the findings of fact it will be necessary to review the effect of Mr Petroni's report as to his overall assessment and the weight, if any, to be given to it.

23 In my opinion this ground of objection does not justify the exclusion of the report.

DISCRETION

24 It has been submitted that the Court ought to exercise the discretion conferred by s 135 of the Evidence Act 1995 to reject the report on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the NAB.

25 Some of the defences raised in the matter depend on the Contracts Review Act. Section 9(2) of that Act requires the court to have regard, inter alia, to the age and physical or mental capacity of a party at relevant times. The report, if accepted, could be of significant probative value at least in relation to the Contracts Review Act defences, perhaps beyond. True it is that there would be some prejudice to the plaintiff from its admission. However, all evidence tendered by a defendant in defence of a claim made against him is in a sense prejudicial to a plaintiff. Section 135 is not concerned with mere prejudice; it is concerned with prejudice that is unfair. The word "unfairly” qualifies “prejudicial" and as used in s 135 is important.

26 The NAB has been aware of the existence of the report for a long time. It has responded to the prospect of the tender of the report (or some equivalent) by having Mr Garry examined by its own expert, who has prepared a report for its use in these proceedings. Whilst it may have been open to Mr Garry and those advising him to have had a second report prepared in relation to the subject matter covered by Mr Petroni's report this has not been done. That, however, is not, in my opinion, a sufficient basis either alone or in combination with the other matters to which I have referred, to reject the report.

CONCLUSION

27 Having considered the report, the grounds of objection, the issues raised between the NAB and Mr and Mrs Garry, the significance of the report of Mr Petroni in relation to the case made by Mr and Mrs Garry and in relation to the plaintiff's case and generally, the fact that the NAB has had an opportunity (which it has exercised) to have Mr Garry examined by an expert of its choice and in light of the relative positions of the NAB and Mr and Mrs Garry I am not satisfied that the probative value of the report in question is substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiff.

28 Accordingly, subject to the exclusions to which I have already referred, I admit the report.

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Last Modified: 02/11/2003