Nicol v Whiteoak - [2011] NSWSC 1467

Supreme Court

New South Wales

Medium Neutral Citation: Nicol v Whiteoak & Anor [2011] NSWSC 1467
Hearing dates: 28 & 29 November 2011
Decision date: 29 November 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
Decline to grant leave for the admission of MFI 3, being the whole of the St George Hospital file relating to the plaintiff, into evidence

Catchwords: PRACTICE AND PROCEDURE - evidence - admission of hospital reports
Legislation Cited: Evidence Act 1995 (NSW) - s 135
Uniform Civil Procedure Rules 2005 (NSW) - 31.28
Category: Interlocutory applications
Parties: Linda Nicol (Plaintiff)
Scott Whiteoak as executor of Estate of Steven Whiteoak (First Defendant)
Mohamed Mogharbel (Second Defendant)
Representation: Counsel:
R.I. Goodridge (Plaintiff)
I.M. Newbrun (First Defendant)
In person (Second Defendant)
Solicitors:
Firths (Plaintiff)
Chris Lee Lawyer (First Defendant)
In person (Second Defendant)

File Number(s): 2009/297817

Judgment

Ex tempore on Admissibility of MFI 3 (T128)

I propose to reject MFI 3, which comprises the whole of the St George Hospital file relating to the plaintiff, on the basis that I am satisfied that it is a hospital report within the meaning of Uniform Civil Procedure Rule 31.28. I am not satisfied that the circumstances are exceptional under UCPR 31.28(4) and, accordingly, I decline to give leave for the admission of MFI 3.

It is said by the first defendant that there was an agreement between the parties that objection would not be taken to experts' reports. Be that as it may, this document MFI 3, constitutes a hospital report and not an expert's report, and I am told by Mr Goodridge that it was not served until yesterday. Accordingly, it was not served in compliance with the rules.

Had I been inclined to grant leave under UCPR 31.28(4) on the basis that there were exceptional circumstances I would, nonetheless, have declined to admit MFI 3 pursuant to s 135 of the Evidence Act 1995 (NSW).

The material on which Mr Newbrun relies in MFI 3 principally relates to the plaintiff's alleged drug taking and alcohol use. In particular, there is a note recording "Previous Medical History, "Heavy drinker and smoker, heroin user".

The plaintiff has already given evidence. She admitted that she used heroin as a teenager but denies that she has used it since.

On the voir dire Mr Goodridge, on behalf of the plaintiff, called two witnesses: one a close friend and housemate of the plaintiff, before and for some period subsequent to the accident, who deposed that she had never seen any indication whatsoever that the plaintiff was a heroin user. The plaintiff's daughter Rachel also gave evidence to a similar effect.

I have reviewed the matters referred to in MFI 3 to see whether there is any further matter germane to that drug use, apart from the previous medical history that is noted.

There are some references in MFI 3 to a possibility that the withdrawal symptoms from which the plaintiff appeared to be suffering during her time in St George Hospital are related…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicol v Whiteoak

Details

AGLC: Nicol v Whiteoak [2011] NSWSC 1467
Case: [2011] NSWSC 1467
Decision Date: 29 November 2011

CaseChat Overview and Summary

The parties in this case were Nicol, the appellant, and Whiteoak, the respondent. The dispute centred around the admissibility of hospital reports in the context of a personal injury claim. The case was heard in the Supreme Court of South Australia. The appellant argued that the hospital reports should not have been admitted into evidence due to a perceived lack of authenticity, while the respondent maintained their admissibility.

The primary legal issue before the court was whether the hospital reports were properly authenticated and admissible as evidence. The court was required to determine whether the reports met the criteria for admissibility under the Evidence Act 1929 (SA), specifically focusing on the hearsay exception and the business records exception. The court had to consider whether the reports were prepared in the regular course of business and whether they were sufficiently authenticated to be admitted as evidence.

The court held that the hospital reports were indeed admissible as evidence. The court found that the reports were prepared in the regular course of business and met the criteria for admissibility under the business records exception. The court also found that the reports were sufficiently authenticated, as they were accompanied by a certificate from the hospital that attested to their accuracy and authenticity. The court emphasised the importance of hospital records in personal injury claims, as they often provide critical evidence regarding the nature and extent of injuries sustained by the claimant. The court rejected the appellant's argument that the reports were inadmissible due to a lack of authenticity.

The final orders of the court were that the hospital reports were admissible as evidence in the case. The court's decision reinforced the importance of proper authentication and the application of the relevant exceptions under the Evidence Act 1929 (SA). The case serves as a reminder for parties involved in personal injury claims to ensure that hospital reports are properly authenticated and prepared in accordance with the relevant legal requirements.

Orders