Naimo v NRMA Insurance
[2020] ACTSC 4
•30 January 2020
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
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.
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.
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.
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.
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
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 fees at the rate of $1500 per hour. I refrain from making any comment about these latter fees, except that in assessing whether it is appropriate to make the order sought I have ignored them to the extent to which they exceed $550 per hour plus GST. The evidence was also deficient in that it failed to identify the likely fees involved in giving telephone or videolink evidence.
The evidence also indicates the lack of any identified reason for the plaintiffs to insist upon the evidence being given in person, other than that it is the default position under the Court Procedures Rules 2006 (ACT) (CPR) and the possibility that the doctors may need to give evidence concurrently. In relation to concurrent evidence, there has been no suggestion or order elsewhere in the proceedings that evidence would be given concurrently and no order for the preparation of any joint report by any combination of experts.
The position of the defendants was that although the starting point in CPR r 6700 was that evidence would be given orally in person in open court, under r 6703 the court has a discretion to receive evidence by telephone, videolink or another form of communication. Counsel for the defendants submitted that having regard to s 5A of the Court Procedures Act 2004 (ACT) (CP Act), the absence of any particular complexity in the nature of the matter and the routine practice of the court to permit doctors to give their expert evidence by telephone, it was appropriate to make an order permitting evidence to be given by telephone. Counsel identified that the primary position of the defendants was that evidence should be permitted by telephone. Notwithstanding that his own client had sought that it be allowed to call each doctor by videolink, he submitted that there was no evidence as to the availability of the facilities that would permit the doctors to give evidence by videolink.
The position of the plaintiffs was that they consented to the giving of evidence by videolink but submitted that the court should decline to make an order permitting evidence to be given by telephone. Counsel for the plaintiffs pointed to the fact that the burden was on the defendants to satisfy the court that it was appropriate to make the order sought. He submitted that his clients were entitled to insist upon the giving of evidence in person. He identified that there was no evidence of any impediment, other than cost, to the doctors giving evidence in person. In particular, there was no evidence that, for example, any of the doctors had surgery or other lists which would be affected by a requirement to give oral evidence in person on any of the particular days of the trial.
The plaintiffs also pointed to the decision in Lardner v Australian Capital Territory [2018] ACTSC 77 (Lardner) in which the Associate Judge carefully set out (at [9]-[24]) the statutory and rules framework for the making of a decision about the giving of evidence by audio or audiovisual link and the principles to be applied. Counsel for the plaintiffs identified that Mr Inglis of counsel would be the plaintiffs’ trial counsel but that he was not aware as to what aspects of the respective doctors’ evidence Mr Inglis intended to challenge in cross-examination or how that challenge would proceed.
Consideration
The giving of evidence in person clearly has its benefits over giving evidence by telephone. The capacity to assess the manner in which answers are given may be significant to an assessment of the weight to be given, even to expert evidence. The overall impression of the expert may affect the court’s approach to the expert’s evidence.
Having said that, the cost of that exercise is a very significant one. It is also an exercise which for many doctors will be highly disruptive. Many of the doctors retained as experts by plaintiffs and defendants in proceedings in this court come from outside the Territory and a requirement to travel to the Territory in order to give oral evidence in a trial will usually take up at least most of a day, even if the time spent giving evidence is relatively brief. There are therefore good reasons why it will often be appropriate to permit evidence to be given by telephone or videolink. It is for that reason that, between parties acting reasonably and consistently with their duty under s 5A of the CP Act, the issue is often an uncontroversial one.
Some of the circumstances which may indicate that it is not appropriate to permit an expert witness to give telephone evidence include:
(a) where the cross-examination is likely to be lengthy;
(b)where the volume or nature of documents to be shown to the witness would be impeded by having evidence given in that manner;
(c)where evidence of expert witnesses is to be given concurrently;
(d)where there is anticipated to be a particular issue based on the demeanour of the witness which is contended to be of likely significance to the assessment of the witness’ evidence;
(e)where there is to be an attack on the reliability or weight to be given to the evidence of the witness based on a lack of independence or partisanship; and
(f)where the giving of evidence is likely to be made more difficult by technical difficulties associated with the giving of telephone evidence.
(See also Lardner at [22].)
These are merely examples of circumstances in which there may be good grounds for proceeding by viva voce evidence, even though the cost and disruption to the witness may be increased. The significance of any of these factors would need to be weighed against issues of cost and inconvenience. Cost may be of significance where a party is an individual rather than an institution. Inconvenience may be significant where there is evidence of particular inconvenience to the relevant witness.
The defendants bear an onus to persuade the court that it is appropriate to depart from the default position, evidence given in person. In this case there is evidence of substantial cost, although no evidence of comparative cost. Some degree of inconvenience to the witnesses can be inferred from the circumstances, even in the absence of specific evidence.
As indicated earlier, counsel appearing on the application for the plaintiffs was unable to give any indication as to the approach to be taken by the trial counsel to the evidence of the witnesses, other than that they would be in contest to some degree. Thus, the court has no idea about the issues which are likely to be canvassed in cross-examination, whether there will be any practical difficulty in conducting cross-examination on the telephone or whether the assessment of demeanour in person will be a matter of greater significance in relation to these witnesses than in relation to any other medical witness in an assessment of damages arising out of a rear-end motor vehicle accident. Counsel for the plaintiffs did point to a previous decision of the court where matters relevant to the weight to be given to the evidence of Dr Samuell and Dr Smith were considered: Dojcinoski v Aleksovski [2015] ACTSC 357 at [135]-[148]. However, he did not identify that the trial counsel intended to cross-examine those witnesses on the issues referred to in that case.
Had there been some particular issue in relation to an identified medical expert that meant that cross-examination either in person or by videolink would be significant for the court in assessing the weight to be given to that evidence, then it may well have been an appropriate case in which to decline to make an order permitting evidence to be given by telephone. However, because the plaintiffs have only put their contentions at the most general level and have declined in relation to any of the doctors to identify any particular reason why viva voce evidence would be significant in this case, it is a case in which it is appropriate to permit the doctors to give evidence by telephone. Under r 6703(2) of the CPR, a condition will be imposed upon the entitlement so as to preclude the use of mobile phones. It is often the case that where mobile phones are used the quality of the reception is such that portions of the audio are unable to be properly transcribed and hence the evidence is of less use to the parties, the court and the Court of Appeal.
Having accepted the primary position of the defendants that the giving of evidence by telephone should be permitted, it is unnecessary to consider the alternative position that they should be permitted to give evidence by videolink. On that issue there was no evidence about the availability of facilities or the cost of accessing those facilities: see Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 20(2)(a). It may be the case that such facilities are as readily available to the doctors as telephones, in which case the giving of evidence by video would be preferable. However, because the defendants have established that it is appropriate to make an order permitting telephone evidence it was not necessary to further adjourn the proceedings so as to permit the exploration of that issue. Having regard to the obligations on parties under the CP Act s 5A, it would have been appropriate for those inquiries to have been made and for evidence to have been put on about that alternative.
The orders of the Court in relation to the proceedings are as follows.
1. In proceedings SC 104 of 2018 (McPhee) the oral evidence of:
(a) Dr Anthony Smith;
(b) Dr Doron Samuell; and
(c) Dr Mohammed Mourad;
may be given at the trial of this action by telephone (not being a mobile telephone).
2. In proceedings SC 105 of 2018 (Naimo) the oral evidence of:
(a)Dr John (Ian) McDonald;
(b)Dr Doron Samuell; and
(c)Dr Nicholas Burke;
may be given at the trial of the action by telephone (not being a mobile telephone).
[The parties were heard on costs.]
The orders of the Court in relation to costs are:
1.In proceedings SC 104 of 2018 the plaintiff is to pay the defendants’ costs of the Application in Proceedings dated 16 January 2020 but those costs may not be assessed until the proceedings end.
2.In proceedings SC 105 of 2018 the plaintiff is to pay the defendants’ costs of the Application in Proceedings dated 15 January 2020 but those costs may not be assessed until the proceedings end.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 5 February 2020 |
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