Oates v. Cootes Tanker Service Pty Ltd & Anor

[2005] QSC 213

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2005] QSC 213

FRYBERG J

No BS8241 of 2003

BRETT ANDREW OATES

Plaintiff

and

COOTES TANKER SERVICE PTY LTD

and

THE SHELL COMPANY OF AUSTRALIA LIMITED

First Defendant

Second Defendant  

BRISBANE

..DATE 27/07/2005

RULING

HIS HONOUR:  In this matter counsel for the defendants has

objected to the tender of oral evidence by Dr McKay, the

plaintiff's general practitioner.

The plaintiff is suing for damages for back injuries with

psychiatric sequelae sustained, allegedly, in late 2001.  So

far the evidence has disclosed that a few days after he had

the fall which he alleges caused the injuries, his back was

operated on by Dr Campbell and apparently that operation was

successful.  The plaintiff now complains, not only of pain from the region  of that operation, but also of pain from a much higher part of his back.  It is unclear from the plaintiff's case at this point whether he asserts a definite orthopaedic injury in respect of that second source of pain or a psychiatric disability with that part of the back as a focal point.  It is, however, clear that the plaintiff now asserts that he suffers severe pain from his back, including the higher part of his back, and that the nature of the pain is severely disabling and that it has been so for at least two years.

The evidence called on the part of the plaintiff from medical

practitioners relates to medical practitioners who examined

him in periods leading up to 2003, at least in the main.  No

particular attention has been focused by any medical

practitioner on the plaintiff's condition in 2004 and,

(perhaps a little surprisingly) none has been focused on his

present condition.  He does not appear - I should add that his evidence is not yet complete - to be intending to lead evidence of up-to-date medical examinations showing his current position.  Presumably he intends to rely on some sort of presumption of continuity, reinforced by his own evidence as to the actual continuity of his condition for the last two or three years.

Among the doctors to be called on his behalf is Dr McKay.

Dr McKay is his general practitioner and has provided three

reports regarding the plaintiff, the most recent of which was

in early 2004.  If the pattern followed by other witnesses

were to be followed with Dr McKay his evidence in chief would be limited to those reports.  However, the plaintiff now wants to lead oral evidence from Dr McKay relating to his visits to the doctor in and around September 2004 and since that time and of the doctor's opinion of his condition and treatment at and since that time.

Objection has been taken by the defence to that evidence.  It

is accepted that no report has been prepared and that the

evidence does not exist in written form.  The reason advanced

by the plaintiff for the absence of any report on this matter

is that the plaintiff did not intend to address the issues now

sought to be addressed in the proposed evidence until the

defendant produced a videotape taken in secret of the

plaintiff's conduct in September 2004.  That videotape was

produced by the defendant for the first time late on the first

day of the trial, today being the third day.  Copies of it

were then made available and were given to the plaintiff's

doctors who have testified in cross-examination regarding

their views as influenced by that videotape.  Plainly the

defence intends to contend that the plaintiff is not nearly as

disabled as he makes out.  The videotape provides some

significant support for that contention.

In response to that evidence those advising the plaintiff have

formulated the intention to lead further evidence from

Dr McKay regarding the plaintiff's condition at the time he

was photographed and since.  No other medical practitioner has

seen the plaintiff over the relevant period.

The objection is taken by the defendants, first, under rule

548(4).  That rule provides:  "At the trial the plaintiff may

call or tender evidence not identified in the plaintiff's

statement of loss and damage or not given to the defendant

under this part, only if", and then (a) and (b) which are not

relevant here, "(c) the Court for special reason gives leave."

The defendants oppose the grant of leave on the basis that the

subject matter of the proposed evidence ought to have been

reduced to writing and ought to have been provided to them by

reason of the provisions of rule 548(3).  That rule provides:

"If the plaintiff intends to rely at the trial on
   evidence of the plaintiff's injury, loss (including
   economic loss) or treatment (including future
   treatment) not in a report that, if it were in a report
   would be required to be identified under subrule 1, the
   plaintiff must, before the request for trial date is
   filed, serve on the defendant the evidence in the form of
   a report or a proof of the evidence."

It is not disputed that if Dr McKay's evidence were in a medical report it would have been required to have been identified under rule 548(1). However, the plaintiff submits that rule 548(3) has no application in the circumstances of the present case because the intention to call this evidence was formulated only in the last day or two. It is submitted that subrule (3) can apply only to an intention which exists at or before the date of the filing of the request for trial date. Mr Myers, for the defendants, asserts that that submission would run contrary to the spirit of the Rules and to the practice of the Court under what he says were practice directions to like effect predating the Uniform Civil Procedure Rules.

No binding authority seems to exist on the interpretation of

rule 548(3). There are, however, dicta from a decision of the Court of Appeal in Campbell v. Jones [2003] 1 QdR 630 at page 645. There, in the joint judgment of Justice Mullins and me, it was said, in relation to a document which had not been provided to the defence:

"It is quite conceivable that it"

-that is the document -

"did not exist when the statement [of loss and damage] was served and that it did not come into existence between then and the setting of the trial date.  There is, therefore, no basis for concluding that its omission from the statement constituted a breach of the UniformCivil Procedure Rules.  However, even if there were no such breach the respondent was in breach of rule 549(3).  That rule required the respondent to give any further documents mentioned in rule 548(1) to the appellant as soon as practicable."

In that passage we were referring to rule 547 and rule 548 when we wrote of the omission not constituting a breach of the Uniform Civil Procedure Rules. That is apparent from the immediate reference to a breach of rule 549(3). That

is important because although the passage is obiter it

indicates that there is no breach of rule 548 subrule (3) if

the omission to serve the document up to the time of the

filing of the request for trial date was not accompanied by an

intention to rely on the evidence at trial.

The defendants respond by submitting that such a construction

is one which would open up the rules to abuse.  Parties would

be able, it was submitted, to refrain from getting reports

from experts until after the request for trial date was filed.

That is not a realistic scenario.  Quite apart from the extreme risks which such course would pose for the success of a party's case, it does not reflect the hoops through which personal injuries plaintiffs and defendants must now jump prior to action, and it does not reflect rule 549 which provides by subrule (3) that the plaintiff must give any further documents mentioned in 548(1) as soon as practicable, or must identify them.

It is, I think, unlikely that a serious defendant would

refrain from getting anything in writing from an expert at all

in order to avoid giving the expert's opinion to the plaintiff

before trial.  There is no risk of abuse of the type referred

to in the in terrorem argument advanced on behalf of the

defendants.

In my judgment the plaintiff has not breached rule 548(3).

That, however, does not mean that he does not need leave under

rule 548(4).  The case to which I have referred is, I think,

authority for the proposition that he does.

The full extent of the obligation under r 548(4) has been questioned by the Chief Justice in Curry v. Aughey [2003] QSC 172, but no point has been raised on that basis in this case. The plaintiff has accepted that leave is needed, submitting that the special reason here is that the need for the evidence arose only during the course of the trial in response to a videotape which the defendant had not only not disclosed but which it had deliberately kept secret pursuant to an order obtained ex parte from the Court.

It seems to me that the plaintiff could not have been expected

to have led this evidence as part of its case in the ordinary

course.

Mr Myers submitted that the plaintiff's condition down to the

date of trial is in issue and that the plaintiff should have

come prepared to lead all such evidence.  However the

plaintiff had no reason to think that September 2004, and

since, had any particular significance, nor to address that

period in any detail, until the videotape was produced.

It seems to me that in those circumstances a special reason

for giving leave does exist and I therefore propose to grant

leave under rule 548(4)(c) for the adduction of such evidence.

That does not dispose of the problem of rule 427.  That rule

provides that an expert may give evidence in a proceeding by a

report.  It also provides that oral evidence in chief may be

given by the expert only in response to the report of another

expert, or if directed to issues that first emerged in the

course of trial, or if the Court gives leave.

Mr Myers submitted that rule 427(1), the wording of which

is, "An expert may give evidence in a proceeding by a report",

was to be read as if it were worded, "Subject to this rule an

expert may give evidence in a proceeding only by a report".

For the plaintiff no issue was taken with that construction of

the rule.  I therefore need not determine the matter.  It is,

however, not clear to me beyond a peradventure that it is the

correct construction.  If it had been the intention that this be the only way in which an expert give evidence why would the rule not have said so?  The reality of the situation may well be that a party is unable to get a report from an expert.  Why would the prima facie position be created that such evidence could be advanced only if the Court gives leave?

There is a further problem with Mr Myers' submission.  If it is correct that "only" is to be implied as he submits, a further implication is necessary in order to avoid absurdity.  It would also be necessary to read the rule as if "as an expert" were inserted after "give evidence" in r 427(1) or "opinion" were inserted between those words.  The fact that "as an expert" is used in r 426 and not in r 427 mitigates against the implication of the phrase in the latter.  However unless some such implication is made, an expert whose evidence is limited to matters of fact would (if "only" is implied in the sub-rule) be required to give that evidence in a report.   "Evidence" is not defined.  "Report" is defined to mean a document giving an expert's opinion on an issue arising in the proceeding (r 425).  If the expert were not venturing an opinion, he could not give a report as defined.  Hence the absurdity.

It is unnecessary to decide in the present case whether twisting the natural meaning of the words of the rule in the manner suggested is justified.  Perhaps it is a question which should be considered by the Rules Committee.

Accepting the common assumption of the parties Mr McMeekin

submitted that this was a case which fell within rule

427(4)(b), that is, the evidence is directed to issues that

first emerged in the course of the trial.  The correctness of

that submission depends upon how widely one wants to define

the issues.

I have not had argument on the meaning of the word "issue",

and it is of such a theoretical and jurisprudential nature

that I have not invited counsel to take up any further time in

the midst of the trial in dealing with it.

It seems to me that it should not be given a wide meaning.

Issues of fact, as well as issues of opinion, arise in the

course of the trial as steps in the resolution of the ultimate

issues which have to be determined.  It is the smaller and

narrower form of issue to which, in my judgment, the sentence

is directed.

The issues to which the proposed evidence relates answer that

description.  For that reason I think that the oral evidence

in chief is covered by rule 427(4)(b) and may be given.

Leave having been granted under rule 548(4)(c) I overrule the

objection.

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