Naimo v NRMA Insurance

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Naimo v NRMA Insurance

Citation:

[2020] ACTSC 4

Hearing Date:

29 January 2020

DecisionDate:

30 January 2020

Before:

Mossop J

Decision:

See [19] and [21]

Catchwords:

PRACTICE AND PROCEDURE – EXPERT EVIDENCE – Application by defendants for doctors to give evidence by telephone or audiovisual link from outside the Australian Capital Territory – telephone evidence permitted

Legislation Cited:

Court Procedures Act 2004 (ACT), s 5A

Court Procedures Rules 2006 (ACT), rr 6700, 6703

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20(2)(a)

Cases Cited:

Dojcinoski v Aleksovski [2015] ACTSC 357

Lardner v Australian Capital Territory [2018] ACTSC 77

Parties:

Karen Naimo (Plaintiff in SC 105 of 2018)

Helen McPhee (Plaintiff in SC 104 of 2018)

Insurance Australia Limited trading as NRMA Insurance (Defendant)

Olivia Bell (Defendant)

Representation:

Counsel

J Ronald (Plaintiffs)

J Pappas (Defendants)

Solicitors

Commins Hendriks (Plaintiffs)

Hall & Willcox (Defendants)

File Numbers:

SC 104 & 105  of 2018

MOSSOP J:

Introduction

1. These two cases involve assessments of damages arising out of a motor vehicle accident which occurred on 17 May 2013.  Ms Naimo, the plaintiff in proceedings SC 105 of 2018, was the driver of the vehicle and her mother, Ms McPhee, the plaintiff in proceedings SC 104 of 2018, her passenger.  Liability was admitted on 27 March 2015.  The proceedings are listed for a hearing estimated at five days due to commence on 24February 2020.  The plaintiffs’ listing hearing questionnaires identified that the plaintiffs objected to the defendants’ expert witnesses giving evidence by telephone. This position was maintained in a letter dated 13 December 2019 sent in similar terms in each proceeding.  The relevant experts are all doctors.  The doctors who are concerned are as follows.

1. In the McPhee proceedings the doctors are:

1.Dr Anthony Smith, orthopaedic surgeon;

2.Dr Doron Samuell, psychiatrist; and

3.Dr Mohammed Mourad, orthopaedic surgeon.

1. In the Naimo proceedings the doctors are:

1.Mr John (Ian) McDonald, orthopaedic surgeon;

2.Dr Doron Samuell, psychiatrist; and

3.Dr Nicholas Burke, occupational physician.

1. Thus, unless an order is made, each of these five doctors would be required to attend in person for the purposes of giving oral evidence in the proceedings.

1. The ground of the applications identified in the Application in Proceedings is:

The expenses associated with having the experts available in person at the hearing of this matter will be substantial and there is no reason, in the interests of justice, that the evidence of the expert witnesses in question cannot be given by telephone or, in the alternative, by video link.

Evidence and submissions

1. The evidence in support of the application identified the costs involved with each of those doctors attending court.  One of the doctors identified fees of $550 an hour plus GST.  The fees of other doctors were identified as daily rates in excess of $8000 per day, although it is not clear how that figure was arrived at and in that respect the evidence was unhelpful.  One of the doctors indicated that he would charge…