Poniatowska v Channel Seven Sydney Pty Ltd (No 2) - [2014] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD & ANOR (No 2)
[2014] SASC 123
Reasons for Ruling of The Honourable Justice Parker
28 August 2014
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - MEDICAL EVIDENCE
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE
Ruling on the admissibility of evidence of a psychiatrist’s opinion during trial. The plaintiff claims damages against the defendants for defamation. The evidence of the psychiatrist concerns the assessment of damages and the plaintiff’s mental health during certain periods of time.
Held: Evidence admitted. The evidence of the plaintiff provided a sufficient evidentiary foundation to render the expert opinion admissible. The expert report complies with r 160(3) of the Supreme Court Civil Rules 2006 and Practice Direction 5.4, but if there is any failure to comply the court should exercise its discretion to admit the expert report.
Supreme Court Civil Rules 2006 r 160, r 160(3); Supreme Court Practice Directions 2006 Practice Direction 5.4, referred to.
Ramsay v Watson (1961) 108 CLR 642; Dasreef v Hawchar (2011) 243 CLR 588; McLean v DID Piling Pty Ltd [2014] SASC 76, considered.

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD & ANOR (No 2)
[2014] SASC 123
Civil
PARKER J.

This ruling concerns the admissibility of evidence received on a provisional basis from a psychiatrist, Dr Andrew Czechowicz, during the trial of an action for damages for defamation. The evidence that is sought to be admitted by the plaintiff (Ms Poniatowska) primarily concerns the assessment of damages said to be caused by the allegedly defamatory publication made on 26 October 2011.
The evidence of Dr Czechowicz also referred to the effect upon Ms Poniatowska’s mental health of the Federal Court proceedings relating to the sexual harassment that had occurred while she was employed at the Hickinbotham Group, the effect of the Centrelink fraud proceedings, her reduced capacity to deal with legal issues at that time and the effect of her mental state upon the results recorded in psychological testing. There was also some reference to her health during the earlier part of this trial in late April and early May 2014.
The defendants (Channel 7) oppose the reception of the evidence of Dr Czechowicz on two grounds. The first is that a proper evidentiary foundation for his proposed evidence has not been laid ie a Ramsay v Watson[1] point. The second basis for objection is that his report does not comply with r 160 of the Supreme Court Civil Rules 2006 and Practice Direction 5.4.
[1] (1961) 108 CLR 642.
Channel 7 has not challenged the qualifications of Dr Czechowicz to give expert evidence. He has practised as a psychiatrist in South Australia for forty two years and has given expert evidence on many occasions.
Rule 160(3)
I will first deal with the complaint by Channel 7 that Dr Czechowicz has not complied with r 160 and Practice Direction 5.4.
Rule 160(3) requires that an expert report should set out the expert’s qualifications, the facts and factual assumptions on which the report is based, identify any documentary materials on which it is based, distinguish between objectively verifiable facts and matters of opinion that cannot be (or have not been) objectively verified and comply with any requirements imposed by a practice direction.
Practice Direction 5.4 relevantly requires that the report should set out separately from factual findings or assumptions each of the opinions expressed by the expert, provide reasons for each opinion and contain an acknowledgement that the expert has read and understood r 160 and this practice direction. If a party fails to comply with the rules or the practice direction in respect of an expert’s report the court may, amongst other things, direct that the evidence from that expert not be adduced.
Channel 7 provisionally put into evidence a report by Dr Czechowicz dated 22 December 2011. That has been marked for identification as D180. It was addressed “To whom it may concern” and prepared to support an application by Ms Poniatowska to have her firearms licence reinstated. It does not contain any material relevant to the requirements of r 160 and Practice Direction 5.4.
A bundle of five reports prepared by Dr Czechowicz has been put into evidence on a provisional basis on behalf of Ms Poniatowska and marked for identification as P33. That bundle comprises reports dated 12 June 2008, 3 July 2009, 30 July 2009, 7 April 2010 and 23 November 2012. Only the last of those five reports was prepared for use in the present proceedings. It is that report which is primarily relied upon by Ms Poniatowska.
Dr Czechowicz set out in the report of 23 November 2012 his professional qualifications and experience. He also stated that he had read Practice Direction 5.4 and r 160 and “agreed to comply with such directions in this report”.
The bundle identified as P33 also includes the instructions provided to Dr Czechowicz in a letter dated 23 October 2012 by the solicitors then acting for Ms Poniatowska. Of course, those instructions relate only to the report of 23 November 2012.
Dr Czechowicz stated in the latter report that his opinion was based upon the knowledge he had obtained from multiple interviews with Ms Poniatowska since February 2007 (the most recent being on 15 November 2012), the treatment he had provided and the contents of his file. It was in the latter context that he attached copies of two earlier reports dated 11 June 2010 and 22 December 2011 (now respectively marked for identification as P35 and D180). The first report had been prepared in relation to other legal proceedings while, as already noted, the second related to Ms Poniatowska’s firearms licence.
Only five pages of the report of 11 June 2010 (marked as P35) have been put before the Court for the limited purpose of showing the assumptions relied upon by Dr Czechowicz. Those five pages include a brief summary of Ms Poniatowska’s life history and an extensive list of the material taken into account by Dr Czechowicz when he prepared that report. In essence that material related to the sexual harassment proceedings and judgment in the Federal Court and the Centrelink fraud prosecution and appeal proceedings.
Through incorporation by reference that material establishes the background facts upon which Dr Czechowicz relied upon in forming the opinion he expressed on 23 November 2012.
Junior counsel for Channel 7 advanced several submissions as to why the requirements of r 160 and Practice Direction 5.4 had not been met. First, counsel for Ms Poniatowska had sought to establish in re-examination the basis for the opinion of Dr Czechowicz. That had denied Channel 7 the opportunity to explore the issue in cross-examination. However, Dr Czechowicz was cross-examined at some length on the basis for his opinions and his failure to comply with the rule and practice direction. In that light, on balance, I consider that any unfairness to Channel 7 on this account was not significant and does not warrant exclusion of his evidence.
Dr Czechowicz referred in his report of 23 November 2012 to seven symptoms shown by Ms Poniatowska. The relevant passage in the report of Dr Czechowicz was as follows:
On the examination on 15/11/2012, the current symptoms are those of depression namely that of having a depressed mood, losing interest in daily activities, hobbies etc., of being tearful at times, of feeling flat, of impaired sleep and impaired capacity to deal with others as well as a variable mood which includes features of depression, with features of Post Traumatic Stress Disorder. These symptoms can be somewhat controlled by medication and support but continued stress makes quick recovery unlikely and certainly delays healing. It is highly likely that improvement will occur after finalisation of litigation with Channel 7, especially if that includes a specific apology from Channel 7 which she could use to explain that part of her life to any prospective employer.
The submission by junior counsel for Channel 7 was that it was not apparent which of these symptoms were based on observations made by Dr Czechowicz when he saw Ms Poniatowska on 15 November 2012 and which were based upon earlier observations. Nor was it known what assumptions he made and what history he had taken for the purposes of that examination.
Counsel also relied on the fact Dr Czechowicz’s file did not include any notes relating to that examination nor was he able to remember it. Against that, he stated that he would have dictated the report within a week of the examination while it was fresh in his memory and would only have included material in his report that was supplied by Ms Poniatowska.
Furthermore, as I have already noted, Dr Czechowicz also stated that his current opinion was based on knowledge he had obtained over multiple interviews, including that on 15 November 2012, and on the information held on his file. Significantly, he also stated that “On the examination on 15/11/2012, the current symptoms are ...”
In that light and in view of the statement by Dr Czechowicz that the seven symptoms that he had identified were those that he had either observed or accepted from the information provided to him on that occasion by Ms Poniatowska, I consider that the basis for his opinion is sufficiently explained for the purposes of the rule and practice direction.
While it would have been far preferable for Dr Czechowicz to comply directly, I consider that the effect of his approach was to comply with r 160 and Practice Direction 5.4. If I am wrong about that, I consider that any failure to comply was not significant and did not materially disadvantage Channel 7 in its defence. I would therefore exercise the Court’s discretion to admit his evidence.
The Ramsay v Watson issue
The principles recognised by the High Court in Ramsay v Watson[2] were conveniently summarised by Heydon J in Dasreef Pty Ltd v Hawchar:[3]
An expert opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of fact which are sufficiently similar to the factual assumptions on which the opinion was stated to be based to render the opinion of value.
[2] Ibid.
[3] [2011] HCA 21 at [66]; (2011) 243 CLR 588 at 613; see also McLean v DID Piling Pty Ltd [2014] SASC 76 at [38] and Cross on Evidence (9^th ed, 2012) at 967 [29070].
Channel 7 has contended that the opinions offered by Dr Czechowicz have very little, if any, evidentiary foundation. Ms Poniatowska contends that her evidence provides sufficient foundation. In that context, the following passage published in Cross on Evidence is very helpful: [4]
Expert opinion based entirely on inadmissible evidence is inadmissible.[5] Expert opinion based on a combination of inadmissible and admissible material is inadmissible if it is impossible to determine what conclusions are based on the expert’s own observations and what conclusions are based on hearsay.[6] But expert opinion based only partly on inadmissible material which can be readily ascertained and discarded is admissible subject to weight.[7]
[4] (9^th ed, 2012) at 973 [29070].
[5] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 (FC). See also Sych v Hunter (1974) 8 SASR 118 at 119; R v Reiner (1974) 8 SASR 102 at 109-10 (CCA); R v Lee (1989) 42 A Crim R 393 (Vic FC).
[6] Steffen v Ruban [1966] 2 NSWR 622 (CA); Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 (FC).
[7] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 (FC).
Counsel for Channel 7 has referred to several short passages in Ms Poniatowska’s evidence in chief where she described the effect upon her of the broadcast. Ms Poniatowska stated that when she saw the program on the internet she was extremely upset. She went straight to bed as she was totally drained of energy and was crying. She remained in bed for several hours. She stated that she was “really devastated” and “it was a very destructive effect”.
Ms Poniatowska stated at a later point in her evidence in chief that “my health really suffered” and that her psychiatrist had diagnosed a relapse of her depression and post traumatic stress disorder for which she remained on medication[8]. It is not entirely clear to me whether this reference to her health “really suffering” and the relapse of her two psychiatric conditions was caused by the broadcast or the subsequent issues.
[8] T151, line 27 to 35.
The report prepared by Dr Czechowicz dated 22 December 2011 (marked D180) concerning Ms Poniatowska’s firearms licence indicates that when he had examined her on 14 December 2011 she had shown some symptoms of chronic anxiety but in general had recovered from her major depressive illness. Dr Czechowicz did not mention post traumatic stress disorder. The examination on 14 December 2011 occurred seven weeks after the Channel 7 broadcast.
Consistently with D180, Dr Czechowicz stated in his report of 23 November 2012 that the damage to Ms Poniatowska’s mental health had been caused by the attitude of Channel 7 to her complaints about the broadcast rather than the broadcast itself. However, he also referred to the cumulative effect upon her mental health of successive trauma. While the evidence of Ms Poniatowska referred to her dealings with Channel 7 after the broadcast, she did not refer specifically to the effect upon her mental health of those dealings but referred generally to the effect upon her health of the broadcast and subsequent proceedings.
I have carefully considered whether the evidence of Ms Poniatowska to which I have referred laid a sufficient factual foundation to render admissible the opinion of Dr Czechowicz that it was her dealings with Channel 7 subsequent to the broadcast that caused a relapse of her psychiatric condition.
On balance, I find that the evidence about those dealings combined with the general statements by Ms Poniatowska about her ongoing mental health do provide a sufficient factual foundation to make admissible the opinion expressed by Dr Czechowicz. What weight may be attached to his opinion on this point is a matter for submissions.
The evidence of Ms Poniatowska did refer to the effect upon her mental health of the Federal Court proceedings relating to the sexual harassment that had occurred while she was employed at the Hickinbotham Group. She also referred in her evidence to the effect upon her mental health of the Centrelink fraud proceedings and her reduced capacity to deal with legal issues at that time. She also gave evidence concerning her health during the earlier part of the trial in late April and early May 2014. That evidence provided a factual basis to make admissible the opinions expressed by Dr Czechowicz on those questions. Their weight and significance is a matter for submissions.
Ms Poniatowska did not refer specifically to the state of her mental health as at 26 October 2012 when she undertook psychological testing for the purposes of a report prepared by an employment expert and psychologist, Daryl Stillwell. However, as I have noted above, she did state that her mental health had relapsed after the broadcast and she has required medication since that time. That provides a sufficient factual basis to render admissible the opinion expressed by Dr Czechowicz that her psychiatric illnesses may have affected the test results.