Smith v Waygood

[2005] NSWCA 276

CITATION:	Smith v Waygood [2005] NSWCA 276
HEARING DATE(S):	4 August 2005
JUDGMENT DATE:	26 August 2005
JUDGMENT OF:	Tobias JA at 1; Mathews AJA at 67
DECISION:	(1) Appeal allowed; (2) Set aside the verdict, judgment and orders made by her Honour Judge English on 19 December 2003 and in lieu thereof order that there be a new trial on the issue of damages; (3) Order that the costs to date of the proceedings in the District Court be reserved to the judge hearing the new trial; (4) Order that the respondent pay the appellant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

CATCHWORDS:	EVIDENCE - Legal bias - On part of medical expert - Damages sought for injuries arising out of motor vehicle accident - Conflicting medical evidence - Whether primary judge erred in preferring evidence of medical practitioner retained by respondent on basis that it was the only "unbiased" medical report - APPEALS - Error in exercise of discretion - Whether primary judge's discretion miscarried in refusing leave to admit medical reports pursuant to Pt 28 r 8(6) District Court Rules - APPEALS - New trial - Whether substantial wrong or miscarriage occurred - Whether error deprived appellant of possibility of successful outcome - Whether properly conducted trial could have produced different result
LEGISLATION CITED:	Suitors' Fund Act 1951 District Court Rules 1973 Supreme Court Rules 1970 District Court Expert Witness Code of Conduct
CASES CITED:	House v The King (1936) 55 CLR 499 Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74
PARTIES:	Maz Smith Gordon Waygood
FILE NUMBER(S):	CA 40520/04
COUNSEL:	A: R McKeand SC / D Elliot R: S Campbell SC / D Ronzani
SOLICITORS:	A: G H Healey & Co, Sydney R: T L Lawyers, Sydney

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1566/02
LOWER COURT JUDICIAL OFFICER:	English DCJ

CA 40520/04
DC 1566/02

TOBIAS JA
MATHEWS AJA

Friday 26 August 2005

MAZ SMITH v GORDON WAYGOOD

Judgment

1 TOBIAS JA: Pursuant to leave granted on 11 November 2004, Maz Smith (the appellant) appeals to this Court against the decision of her Honour Judge English of the District Court on 19 December 2003 whereby she entered a verdict and judgment for the appellant in the sum of $7,812.80 but ordered him to pay the respondent's costs.

2 The appellant had sued the respondent in respect of injuries sustained by him in a motor vehicle accident on 18 March 1999 when the vehicle he was driving was struck from behind by the vehicle driven by the respondent. The latter admitted breach of duty of care so that the only issue before the primary judge was that of assessing damages.

The issues on the appeal

3 Essentially three issues were argued on the appeal. The first alleged that the primary judge's discretion under Pt 28 r 8(6)(b) of the District Court Rules 1973 (the Rules) miscarried when she declined to grant leave to the appellant to make admissible the reports of Dr Graham Mahony, an orthopaedic surgeon, dated 1 July 2003 and that of Dr John Alam dated 19 July 2003. The second issue alleged that her Honour erred in preferring the evidence of the respondent's medico-legal consultant, Dr Richard Sekel, upon the basis, firstly, that he had seen the appellant on two occasions whereas (at least impliedly) the medical consultants retained on behalf of the appellant had only seen him on one occasion and, secondly, that the reports of Dr Sekel were, according to her Honour, the only reports that she found to be "unbiased" - thereby inferring that she rejected the reports of all the appellant's medical consultants (of which there were six) upon the basis that they were all biased. Thirdly, her Honour's order for costs was challenged upon the basis that she gave no reasons for making it and, further, that she denied the appellant the opportunity to make any submissions with respect to it. In relation to this third issue, the respondent properly conceded that her Honour did err in making the order for the reasons advanced by the appellant as a consequence of which it should be set aside but that the question of costs should then be decided by this Court rather than the issue being remitted to the District Court for further determination.

The facts relevant to the issues

4 The appellant instituted the proceedings by filing an ordinary statement of claim in the District Court on 18 March 2002. Prior to filing he had consulted with a number of medical practitioners.

5 As I have observed, the accident occurred when the vehicle which the appellant was driving was struck from behind by that being driven by the respondent. At the time of the impact the appellant said that he felt a tingling sensation all the way down his back. Nevertheless, he was able to exchange particulars with the respondent. Neither vehicle was badly damaged and each was able to be driven away from the scene of the accident. The appellant drove to the police station and filled out the appropriate forms. Whilst the shock of the accident wore off, according to his evidence, pain all the way down his back to the bottom of his back started to kick in. He then drove to the Alpha Medical Centre and saw a Dr Harris who told him to take anti-inflammatory medication and take two days off work. By that time his back was sore and he felt a pressure sensation in the middle of his back.

6 The following day the appellant attended the Warringah Medical Centre and saw Dr S Reid who, in a report dated 27 August 2001, noted that x-rays had been taken of both the cervical and lumbar-sacral spine which showed no bone or joint abnormality. He diagnosed muscular strain. Dr Reid advised the appellant to attend physiotherapy and gradually return to his work indicating that his prognosis was for a complete recovery. Notwithstanding the contents of that report, the appellant's evidence was that when he saw Dr Reid he was still in pain and complained of pain in his lower back, neck, arms and legs.

7 The appellant returned to work a few days after seeing Dr Reid. His evidence, according to her Honour, was that he continued with his pre-accident work up until November 2000 although in a reduced capacity. In his evidence he described the pain he was suffering – referring in particular to pressure in his mid and lower back and in his neck, radiating down to his shoulders with occasional tingling all the way down his right leg and sometimes his left leg. This notwithstanding, it was not until 6 April 2000 when he saw Dr E J Alam who examined him without the benefit of any previous medical reports or x-rays (which had apparently been damaged by water whilst in the boot of the appellant's car). In his report of 11 April 2000, Dr Alam set out the subject complaints conveyed to him by the appellant including constant pain in his lower back and pain in his neck radiating to both shoulders, the right more than the left; headaches; depression; disturbed sleep; edginess and irritability; and impaired memory.

8 Dr Alam examined the appellant's neck, thoracic spine, lumbar spine, lower limbs, other joints and abdomen and concluded in his assessment that the appellant had sustained the following in the accident:

"1. A neck injury, by nature aggravation and acceleration of spondylitic process, characterised by symptoms and loss of strength in the right hand.
2. A thoracic injury, of similar nature.
3. A lumbar injury, of similar nature characterised by bi-lateral sciatic syndrome more on the right than on the left. This may bespeak lumbar disc lesion(s).
4. A pelvic ring injury, characterised by tenderness at both sacro-iliac joints, right greater than left together with marked muscular tenderness in gluteals, hamstrings and vastii."

9 As to his prognosis, Dr Alam asserted that the whiplash injury that the appellant had sustained would probably take two or three years to begin to settle but that recovery would only be partial. He would therefore continue to require pain and injury management. He further opined, that in the event that a lumbar lesion was diagnosed by means of CT scans and clinical findings, then that would require treatment in its own right. He thus assessed the appellant's impairment at 15% permanent impairment of the neck and 25% permanent impairment of the back. Under the heading "Credibility", Dr Alam opined that the appellant had given a straightforward account of his injury and subsequent progress and that his injuries, incapacities and impairments were consistent with the accident which he had described.

10 On 31 July 2001 the appellant saw Dr Graham Mahoney, an orthopaedic specialist. His complaints to Dr Mahony were not substantially different from those that he had communicated to Dr Alam. Upon examination Dr Mahony noted that movements in his neck appeared restricted in the extremes and that spinal movements were possible with flexion with fingertips reaching the mid-tibial level. Straight leg raising was possible to about 60° on both sides. No other abnormalities were detected. After noting that no x-rays were available, Dr Mahony opined that the appellant had developed symptoms referrable to a cervical strain with nerve root irritation radiating to the shoulders and the remainder of the upper limbs, thoracic back strain as well as a low lumbar back strain with nerve root irritation radiating to the lower limbs. He considered that the foregoing was consistent with the accident that the appellant had described on 18 March 1999 and that it had produced the lesions referred to. He then considered it reasonable that the appellant did have persistent symptoms and that in order to minimise their exacerbation the appellant should restrict his future activities to those not involving significant bending or lifting.

11 In a supplementary report of the same date, Dr Mahony assessed the appellant's permanent disabilities as follows:

15% permanent impairment of the neck;
15% permanent loss of efficient use of the right upper limb at and above the elbow to include impairment below the elbow;
10% permanent loss of efficient use of the left upper limb at and above the elbow to include impairment below the elbow;
20% impairment of the back;
10% permanent loss of efficient use of the right lower limb above the knee to include impairment below the knee;
5% permanent loss of efficient use of the left lower limb at and above the knee to include impairment below the knee.

12 The appellant was then referred to Dr Paul Darveniza, a highly qualified neurologist, at St Vincents Clinic who examined him on 17 September 2001. In his report dated 19 September 2001, Dr Darveniza noted that on examination there was mild pain from neck movements, a mild to moderate restriction of back flexion with the hands just reaching to the upper third of the shins, mild para-spinal muscle spasm and a normal lumbar lordosis, and that straight leg raising induced back pain at about 80° in both legs. He noted that x-rays taken on 5 May 2000 showed no significant abnormalities of the cervical and thoracic spine. A CT scan of the lumbar-sacral spine on the same date was reported as normal although in Dr Darveniza's view, the appellant did have a minimal broad-based disc bulge at L4/5 without neural encroachment. Her Honour noted that the CT scan referred to was not tendered in evidence.

13 Dr Darveniza then opined that the appellant had suffered mechanical injuries to the neck and lower back in the accident, leaving him with chronic spinal pain and with headaches physically restricting him as he had detailed. As it was well over two years since the accident, he considered that the appellant's current disabilities must be considered permanent. Nevertheless the appellant remained fit for general duties not requiring repetitive heavy bending, stooping and lifting. He considered that the appellant's injuries and their sequelae had led to significant physical and psychosocial loss and had impaired his enjoyment of life in general.

14 The appellant was referred to Dr Robert Gertler, consultant psychiatrist, on 2 October 2001. In a report dated 4 October 2001, Dr Gertler opined that there was no evidence of psychotic thought disorder or organic brain dysfunction. However, the appellant was suffering from an adjustment disorder with depressed mood that manifested primarily as irritability and "snappiness". Dr Gertler considered that that was associated with the chronic pain and disability which he experienced and the associated marked restriction in his ability to pursue leisure activities, such as dancing, which he had previously enjoyed. Further, the appellant's adjustment disorder with depressed mood, whilst mild, did in Dr Gertler's opinion affect his ability to relate to people. However, to date it had not affected his work situation but it had affected his relationship with his family and friends. Nevertheless, he was fit for his employment in terms of his mild adjustment disorder.

15 Dr Gertler considered the appellant's prognosis from a psychiatric point of view to be "fair" and that, in time, with stabilisation of his physical complaints, he would come to terms with his altered physical circumstances.

16 Finally, the appellant saw Mr R Weiland, a chiropractor, on 15 June 2002 where he presented with marked pain throughout his cervical, thoracic and lumbar spine. He reported to Mr Weiland that he was experiencing the pain consistently every day and that the symptoms were aggravated by his current work which involved prolonged sitting at a computer for approximately seven and a half hours per day. Upon examination Mr Weiland found that there was spinal joint dysfunction on the left and right sacroiliac at L4/5, L5/S1, T8/9, T5-7, T1/2, C5/6 and C1/2 segments with overlying tenderness in these areas. There was marked spasming in the cervical, thoracic and lumbar para-spinal trapezius, levator scapulae, gluteal and piriformis muscle groups. Standing full spinal x-rays were taken on 17 June 2002 and confirmed the above structural analysis.

17 Thereafter, the appellant attended Mr Weiland on 13 July 2002, 27 July 2002 and 19 October 2002 with, according to Mr Weiland's report of 11 January 2003, similar symptoms, generally aggravated by an accumulation of daily activities. His opinion was that the appellant suffered from mechanical strain in the identified cervical, thoracic and lumbar segments of his spine and pelvis in the form of spinal joint dysfunction with associated muscle strain and spasm which he considered might well have been precipitated by the motor vehicle accident on 18 March 1999 due to the sudden acceleration/deceleration forces involved.

18 It should be noted from the foregoing summary of the medical reports tendered before her Honour on behalf of the appellant that they related to examinations of the appellant by Dr Alam on 6 April 2000, Dr Mahony on 31 July 2001, Dr Darveniza on 17 September 2001, Dr Gertler on 2 October 2001 and Mr Weiland on 15 June 2002. It would be a fair comment that these reports were, as her Honour implied (at Red 24J), outdated by the time the hearing before her commenced on 27 July 2003 being two years after Dr Mahony had examined the appellant and 22 months after he had been examined by Dr Darveniza.

19 The only medico-legal consultant retained by the respondent to which the appellant was referred was Dr Richard Sekel, a consultant in occupational medicine. He examined the appellant on 24 January 2000 and again on 18 June 2002. In his first report dated 24 January 2000, he noted that on examination of the appellant's lower back, forward flexion of the back was "refused" beyond fingers to lower shins because of a complaint of "pulling" in the lower back. However, Dr Sekel noted that at a later stage whilst the appellant was lying on a couch with his legs outstretched before him, unaware that he was being observed, forward flexion of the back was possible so that his fingers reached his toes without apparent difficulty or discomfort indicating, according to Dr Sekel, exaggeration of responses during the earlier part of the examination.

20 Dr Sekel considered that his physical examination of the appellant did not reveal evidence of any significant pathology and, specifically, no evidence of an intervertebral disc lesion or pressure on nerve roots in either the back or neck. The appellant was therefore fit for all normal activities including sport.

21 Dr Sekel next examined the appellant on 18 June 2002. He noted in his report dated 19 June 2002 that a plain x-ray of the appellant's spine and pelvis performed on 17 June 2002 revealed no significant abnormality. On physical examination Dr Sekel considered that there were a few inconsistencies suggestive of exaggeration or falsification of responses, which he then described. These related in particular to examination of the appellant's lower back where, as he had on the first examination by Dr Sekel, the appellant had refused to forward flex his back beyond fingers to mid-shins because of claimed lower back pain. However, at a later time whilst lying outstretched on a couch while his lungs were being examined with a stethoscope, he was able to lean forward so that his fingers reached to his ankles without apparent discomfort or difficulty.

22 On examination of the appellant's lower limbs, Dr Sekel noted that straight leg raising was refused beyond 60° with each lower limb because of a complaint of lower back pain. At a later time, whilst the appellant's legs were being tested for pinprick sensation, straight leg raising was possible through 85° without apparent difficulty or discomfort, suggestive of earlier falsification of responses.

23 Accordingly, Dr Sekel considered that any soft tissue injury to his lower back that the appellant may have sustained during the relatively minor rear end motor vehicle collision of 18 March 1999 would have completely resolved within the initial four to six weeks without long term complication as a consequence whereof there were now no ongoing physical abnormalities resulting from the accident.

24 That was the state of the medical evidence when the proceedings went to arbitration on 10 December 2002. At that time, although the respondent had the benefit of a relatively recent report of Dr Sekel dated 19 June 2002, the reports of the medical consultants upon which the appellant relied were all more than 12 months out of date.

25 The arbitrator made an award in favour of the appellant on 12 February 2003 that was not accepted by him and, as was his right, he sought a rehearing. The rehearing was listed for call-over on 6 May 2003 and fixed for hearing commencing on 28 July 2003. As at the beginning of July 2003, some four weeks before the commencement of the hearing before the primary judge, the medical evidence remained the same and, in particular, the appellant had not consulted with a medical practitioner for the purpose of the proceedings since he had seen Dr Gertler on 2 October 2001. In particular, he had not seen Dr Alam since 6 April 2000, Dr Mahony since 31 July 2001 and Dr Darveniza since 17 September 2001. Nevertheless, as appears from the evidence he gave before the primary judge, the appellant's complaints and symptoms had not changed. If anything, they had worsened. Thus her Honour described his complaints given in evidence in the following terms (Red 18T-X):

"By July 2003 when he went to see Dr Mahony he was finding if he lent on his elbows he experienced pins and needles through his hands and he continued to drop things. He was having difficulty sleeping and with his memory.
Currently he complains of a sore neck, tenderness in the shoulders, he has trouble turning and putting his head down, he has pain in his lower back extending into his right leg with an area of numbness in the top corner of his lower back. He still suffers from headaches. If he bends his head forward he feels a sharp pain in the middle of his neck and tenseness in his shoulders. His arms have no strength. He is so weak on occasions that he cannot even pick up a bottle of Coke."

26 Within a month or so prior to the commencement of the hearing before the primary judge, the appellant's solicitors appear to have had a change of heart in terms of the desirability of his being further examined at least by Dr Alam and Dr Mahony. The appellant was thus re-examined by Dr Mahony on 1 July 2003 at which time he related the same symptoms and complaints as he had conveyed to Dr Mahony when he first saw him on 31 July 2001. Examination of his neck, shoulders, upper limbs and back yielded precisely the same results as the examinations conducted on 31 July 2001. So far as Dr Mahony's examination of the appellant's lower limbs was concerned, the position had worsened in that straight leg raising was only possible to 45° on both sides rather than the 60° on the earlier examination. Accordingly, Dr Mahony's opinion was the same as that expressed in his earlier report, as was his assessment of the appellant's permanent disabilities.

27 Dr Mahony's reports of 1 July 2003 were served upon the solicitors for the respondent on 2 July 2003.

28 The appellant was also re-examined by Dr Alam on 14 July 2003. Essentially, his complaints had not changed. In some respects his position had worsened. Thus, with respect to movements of his neck, whereas when first examined he was able to rotate to the right 65° and to the left 70°, on re-examination he was only able to rotate to the right 45° and to the left 50°. Further, although on the earlier examination his grip strength was satisfactory, it was now reduced, with the right hand having less than the left. With respect to his thoracic spine, there were areas of tenderness that were described in Dr Alam's first report as "considerable" and in his second report as "indicating traumatic active spondylitic process". On examination of the appellant's lumbar spine, when first examined the appellant's leg raising was impaired right 45° and left 40° whereas now the impairment was right 40° and left 45°.

29 Furthermore, at the current examination, measurement of his two limbs indicated some degree of circumferential wasting by 2cm in the left thigh compared with the right, and 1cm in the left calf compared with the right. Dr Alam's assessment on this occasion was essentially the same as that resulting from his first examination of the appellant, although, with respect to Item 3 referred to in [8] above, he made no reference in his second examination to the appellant's injuries bespeaking lumbar disc lesion(s). However, under the heading "Prognosis", Dr Alam confirmed his previous remarks in his first report including his comment that if a lumbar disc lesion was confirmed by a CT scan and clinical findings, then that would require treatment in its own right. His assessment of permanent impairment remained the same. The report of this examination by Dr Alam was dated 19 July 2003 and was served on the respondent's solicitors on 21 July 2003, just seven days prior to the commencement of the hearing before the primary judge.

30 At the commencement of the hearing before her Honour on 28 July 2003, the appellant sought to tender all the medical reports referred to above including those of Dr Alam dated 19 July 2003 and Dr Mahony dated 1 July 2003. All were admitted except the last two which were objected to. Their tender was pressed but, after legal argument, they were rejected by her Honour. Regrettably, the transcript does not contain any details of the legal argument that ensued or any reasons given by her Honour for rejecting the tender. Nevertheless, it was common ground that the reports were rejected by her Honour upon the basis that she had refused to grant leave pursuant to Pt 28 r 8(6) of the Rules to admit the reports as they had not been served in accordance with the provisions of Pt 28 r 8(3) which, unless the Court otherwise ordered, required all expert reports to be served at least 28 days before the day first scheduled for a status conference in the proceedings. We were informed that that would have been some time prior to the commencement of the arbitration on 10 December 2002.

31 The only reference in her Honour's judgment to the rejection of these reports was in the following paragraph (at Red 23H-J):

"Dr Alam was called to give evidence in the plaintiff's case. He first saw the plaintiff on 6 April 2000 and saw him again more recently. The second report was not served in accordance with the rules and objection was taken to the tender of the report and the doctor's evidence of his most recent consultation. The tender of the report was disallowed and the doctor's evidence restricted to his initial consultation."


Dr Alam was the only medical specialist who was called by the appellant to give evidence and cross-examined. The respondent did not require him for cross-examination although, after he had given his evidence in chief, the opportunity was taken to cross-examine him. None of the authors of the other medical reports were required for cross-examination.

The relevant reasoning of the primary judge

32 The primary judge set out chronologically in some detail in narrative form a summary of the evidence contained in the reports of the various medical practitioners that were tendered and admitted into evidence. I have already referred (at [31] above) to her Honour's comments with respect to Dr Alam's second report. That narrative also included references to the appellant's evidence especially with respect to his employment history and its relationship to the complaints which he was making to the medical practitioners by whom he had been examined. Apart from a reference to Dr Alam's oral evidence to which I shall return, I think it is fair to say that the narrative contains no criticism of the medical practitioners in question. An example of her Honour's criticism of the appellant, as distinct from one or other of the medical practitioners, is illustrated by the following passage in her Honour's judgment (at Red 26K-M):

"He told Dr Darveniza that because of spinal pain he could only sit or stand for a maximum of 10 minutes, this is a time when he was working for RSL Communications sitting at a computer seven and a half hours a day and taking little or no time from work as a result of back pain. Certainly by the time he gave evidence he was capable of sitting in the witness box without any apparent discomfort or the need to stand or stretch."

33 At Red 29O her Honour commenced her "findings", the first of which was that she found the appellant to be a less than reliable witness and to have exaggerated the severity of the impact of the accident upon him. In particular, she referred to aspects of the appellant's employment history that, according to her Honour, were contradicted by the history given by him to Dr Sekel on 24 January 2000. She then made the following observations (at Red 30P-T):

"It is always difficult to assess a claim of continued pain and discomfort when those symptoms are unexplained by objective clinical findings or when a plaintiff's complaints are suggested by doctors to be exaggerated. It is necessary to rely upon an assessment of the plaintiff and to determine whether to accept the plaintiff as a witness of truth.
Unfortunately for this plaintiff I find him to be less than a reliable witness as I have said. I find he has attempted at all times to maximise his symptoms. He has attempted to maximise a claim for economic loss which is not supported by the available evidence."

34 It is pertinent to observe that, understandably, there is no challenge to her Honour's findings with respect to the reliability and truthfulness of the appellant.

35 Her Honour then came to her assessment as to which of the opinions of the medical experts she preferred. Her conclusion was as follows (Red 31I):

"I find the evidence of Dr Sekel is to be preferred. He has seen the plaintiff on two occasions and provides the only report which I find to be unbiased ." (emphasis added)

36 Her Honour then found that the appellant had suffered a minor whiplash injury to his neck and back consistent with the opinion of Dr Sekel. She noted that, after treatment in May and September 2000, the appellant did not attend for further treatment until June 2002. She said that in 2000, Dr Alam found a broad-based scoliosis convex to the right with compensatory curves in the opposed direction into the neck and lumbar spine, but by July 2001 Dr Mahony made no such findings. She then observed that medical consultations in 2001 were all of the medico-legal nature (as clearly was that of Dr Sekel). She then said this with respect to the report of Dr Darveniza, the appellant's consultant neurologist (at Red 31N-R):

"It would appear from the report of Dr Darveniza that the scan was done on the same day as X rays in May 2000 and yet the specialists qualified are silent as to its existence. No receipt has been tendered for payment of an account for a scan. I am therefore left in some doubt as to the reliability of Dr Darveniza's report absent the scan on which he seems to place some considerable reliance to arrive at his findings." (emphasis added)

37 Her Honour's conclusion was that she was not persuaded that the appellant had suffered any loss of income as a consequence of the injuries sustained in the accident as there was no independent corroboration of his complaints which she regarded as essential in light of her finding that his evidence was largely unreliable.

The issues in the appeal

Did the primary judge's discretion miscarry in refusing to grant leave to admit the report of Dr Alam dated 19 July 2003 and those of Dr Mahony dated 1 July 2003?

38 The relevant sub-paragraphs of Pt 28 r 8 of the Rules are in the following terms:

(3) Unless the Court otherwise orders, in proceedings to which this rule applies, each party to the proceedings must, at least 28 days before the day first scheduled for a status conference in the proceedings, serve experts' reports and hospital reports on each other party who has an address for service in the proceedings.
…
(6) In proceedings to which this rule applies, except with the leave of the Court or by consent of the parties -
(a) the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert's report served in accordance with this rule; and
(b) neither an expert's report nor a hospital report is admissible when tendered under section 63, 64 or 69 of the Evidence Act 1995 unless it has been served in accordance with this rule.
(6A) The Court may grant leave under subrule (6) only if the Court is satisfied that:
(a) there are exceptional circumstances that warrant the granting of leave; or
(b) the expert's report or hospital report concerned merely updates an earlier version of the report that was served in accordance with this rule.

39 As I have already observed, the time limited by sub-rule (3) above expired some time before the commencement of the arbitration on 10 December 2002. I would therefore assume that all the reports that were tendered and admitted into evidence by her Honour complied with that sub-rule. As I have also noted, the arbitrator gave his award on 12 February 2003 and the rehearing that the appellant sought was listed for call-over on 6 May 2003 and set down for 28 July 2003. These dates notwithstanding, the appellant was not examined by Dr Mahony until 1 July 2003 and by Dr Alam on 14 July 2003.

40 The appellant submitted that, although these reports could not, by force of sub-rule (6)(b), be admitted except with the leave of the Court which could only be granted if the Court was satisfied as required by sub-rule (6A)(b) that the late report merely updated an earlier version of the report of the same expert that had been served in accordance with sub-rule (3), in the present case the Court would be satisfied that each of the 2003 reports of Drs Alam and Mahoney were merely updates of their earlier reports of 11 April 2000 and 31 July 2001 respectively. Once that hurdle was overcome, there was no impediment to the grant of leave pursuant to sub-rule (6)(b) although it was accepted that whether or not leave was granted involved an exercise of discretion which, in the present case, it must be assumed had been exercised by the primary judge in favour of the respondent.

41 The appellant submitted that the reports in question merely provided confirmation of the current medical status of the appellant and their admission could not possibly prejudice the respondent for that reason. Given the lapse of time since the arbitration, justice required that the appellant have the opportunity of updating his medical evidence to be tendered before the primary judge so that, in the absence of any prejudice to the respondent, her Honour should have exercised her discretion in favour of granting leave for their admission.

42 The respondent countered that if it was correct that neither Dr Alam nor Dr Mahony altered their previously expressed opinions and raised no new matters, the tendering of the updated reports gave no comfort to the appellant and took his case no further particularly in the light of her Honour's finding that the appellant was a less than reliable witness who had attempted to maximise his symptoms in order gain a greater claim for economic loss. In other words, as she had rejected the subjective complaints made by the appellant to Drs Alam and Mahoney which did not differ from the time they first examined him to the time of their July 2003 examinations, then no purpose would be served in the admission of their later reports, the opinions in which were undermined in the same manner as they were in their first reports due to the false and exaggerated history which they had received from the appellant.

43 Further, the respondent submitted that, firstly, the July 2003 reports did contain material which did indicate that, upon examination, the appellant's injuries were in fact slightly worse than they were when he was first examined by them; and, secondly, as a consequence of the lateness of the service of those reports, the respondent was denied the opportunity and, so it was submitted, the necessity to obtain an updated report from Dr Sekel. In other words, up until the date of service of the reports (there being no suggestion that they had been in any way foreshadowed prior to their service), the respondent was conducting his case upon the basis that the appellant had not been seen by a medical practitioner retained by or on his behalf since he saw Dr Gertler on 2 October 2001. Then, out of the blue as it were, the respondent was faced with updated medical reports to which he did not have the opportunity to respond. It was in this way, so it was submitted, that the respondent was prejudiced.

44 The appellant's response to these submissions was that, if the respondent was prejudiced by the admission of the reports, he could have sought an adjournment of the hearing and obtained an order for costs. However, in my opinion that is no answer to the respondent's submissions which I accept as there was no necessity to seek an adjournment unless and until leave was granted. Even then, there may well have been great reluctance on the part of the Court to grant any such adjournment. Whether the necessity to do so played any part in her Honour declining to grant leave, upon the basis that to grant leave would have precipitated an application for an adjournment, is not known but would, in my opinion, have been a proper matter to take into account in the exercise of her discretion.

45 In my opinion, there are some small differences between the first and second reports of Drs Alam and Mahoney to which the respondent was entitled to obtain Dr Sekel's response. Furthermore, had the reports been admitted, then the primary judge would have been faced with a very recent examination by two specialists of the appellant whereas the reports of Dr Sekel would have been, to use her Honour's description of the reports of the appellant's medical specialists, "quite dated": see Red 24J. In other words, the position would have been reversed.

46 The appellant accepted that in order to succeed on this issue, he must establish error in the exercise of her Honour's discretion in the nature of those articulated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505. He thus submitted that, upon the facts, it was unreasonable or plainly unjust for her Honour to have refused leave to admit the reports. With respect, I disagree. In my opinion, none of the submissions advanced by the appellant demonstrate that, in any relevant respect, the exercise by the primary judge of her discretion to refuse to grant leave miscarried. On the contrary, in my opinion, she was clearly justified in exercising her discretion to refuse to grant the leave sought. Accordingly, this ground of appeal should be rejected.

Did the primary judge err in preferring the evidence of Dr Sekel upon the basis that he had seen the appellant on two occasions and that he had provided the only report which she found to be unbiased?

47 It was submitted that her Honour's observation that Dr Sekel had seen the appellant on two occasions carried with it the inference, contrary to the evidence, that the appellant's medical specialists had only seen him on one occasion. Even on the basis of the rejection of the July 2003 reports of Drs Alam and Mahoney, Dr Alam (who was the only medical practitioner called to give oral evidence) said in answer to a question in cross-examination that he had seen the appellant twice: on 6 April 2000 and in early July 2003 (Black 41F). Accordingly, it was submitted that her Honour's preference for Dr Sekel's report was underpinned by a factual error. However, in my view her Honour was simply asserting the fact, which was true, that Dr Sekel had seen the appellant on two occasions and I do not consider that she was inferring that Dr Alam had not.

48 However, of greater concern was her Honour's preference for Dr Sekel's evidence upon the basis that he had provided the only report which she found to be "unbiased".

49 The appellant submitted that it was not open to her Honour to make such a finding for several reasons. In the first place, there was no basis in the evidence for asserting that the reports of the medical practitioners relied upon by the appellant were "biased". In this respect, the clear inference to be drawn from her Honour's finding that Dr Sekel's report was the only report which she found to be unbiased was that she found all other reports of the appellant's medical specialists to be biased. In my view, this inference is inevitable. On this basis the appellant submitted that he had been denied procedural fairness in that, firstly, no submission was made on the part of the respondent at trial to suggest that any of the authors of the medical reports tendered on behalf of the appellant were biased; secondly, no opportunity was given to those medical practitioners to deny that their reports were biased because, apart from Dr Alam, none were required for cross-examination; thirdly, it was never suggested to Dr Alam that he was biased; and fourthly, a fair reading of the reports could not possibly lead to the conclusion that they were biased.

50 The respondent contended that her Honour's comment needed to be read in the context of her earlier finding that the medical reports tendered on behalf of the appellant were to be assessed against her finding that the appellant was a less than reliable witness and had attempted at all times to maximise his symptoms. This was of particular relevance where, so she found, she was required to assess his claim for continued pain and discomfort when those symptoms were unexplained by objective clinical findings or when doctors suggested his complaints were exaggerated. However, it is to be noted that it was only Dr Sekel who made that suggestion.

51 Accordingly, the respondent submitted that her Honour was not using the word "unbiased" in a legal or technical sense, namely, that Dr Sekel was the only medical practitioner who did not attempt to express his findings and opinion in a manner favourable to one party or the other but, rather, was totally impartial as was required of an expert by the District Court's Expert Witness Code of Conduct (the Code): see [2], [3] and [4] of the Code. However it may be noted that at least some of the medical specialists retained by the appellant such as Dr Darveniza and Dr Gertler, had recorded that they had read and agreed to be bound by the Code. On the other hand Dr Sekel did not refer to the Code in either of his reports whereas Dr Alam in his report of 19 July 2003 recorded that he was aware of the Code and agreed to abide by it.

52 Finally, the respondent submitted that her Honour was using the word "unbiased" as synonymous with "reliable". There could be no question, so it was submitted, that in light of her findings with respect to the reliability of the appellant's evidence with respect to his complaints, she was entitled to find that Dr Sekel's report was the only one that she found reliable in that it was consistent with her finding with respect to the reliability of the appellant's complaints.

53 Had her Honour used the word "reliable" instead of the word "unbiased", there could be no challenge to such a finding in view of the matters to which I have referred and, in particular, her unchallenged findings with respect to the reliability of the appellant himself. However, where her Honour has intended to find the evidence of a witness to be reliable or unreliable she specifically said so. Thus, as I have observed, she expressly found the evidence of the appellant to be unreliable. Similarly, two paragraphs after finding that Dr Sekel had provided the only report which she found to be unbiased, after considering Dr Darveniza's opinions she found that she was left in some doubt as to the "reliability" of his report: Red 31Q-R.

54 But the real difficulty faced by the respondent is in her Honour's observations with respect to the oral evidence of Dr Alam. As I have indicated, he was the only medical practitioner who gave oral evidence. In his evidence in chief (Black 37), he was asked whether he had seen the appellant in July 2003, which he affirmed. Towards the end of his evidence-in-chief he referred to his examination of the appellant "just recently" to which objection was taken and her Honour informed him that his evidence must be restricted to his earlier consultation with the appellant, to which he assented. He was then asked (at Black 40) another question to which counsel for the respondent objected upon the basis that he could not be permitted to go outside the state of his knowledge as at April 2000. He was next asked as to whether when he saw the appellant on 6 April 2000 he regarded his assessment of his impairment as permanent. Dr Alam responded that at the time it was an interim assessment as only just over a year had passed since the accident, but in the light of his experience dealing with whiplash injuries for over 40 years he considered that the appellant's impairment was "probably going to be permanent". The following exchange then took place (at Black 40V-X):

"Q. They were your thoughts then, that they were going to be --
A. Yes.
Q. And his prognosis for the future?
A. As I've set out there. His position now is permanent."

55 Dr Alam was then cross-examined. The thrust of that cross-examination was to establish that, as he was required to assume that he had only seen the appellant once on 6 April 2000, and had in his report of that examination referred to his findings as "interim", he could not now assert that the appellant's impairments were permanent. Dr Alam took issue with the way in which he was required to limit his evidence. As he expressed it at (Black 42E), he was

"very much in a handicap here. I have seen the man subsequently. I have different opinions – at least I have more. I have ascertained a further stronger opinion since."

56 When informed that he was not being asked about that, and he was not allowed to say it, his response was (at Black 42H):

"You are putting me in a position of disadvantage, that's what you're doing."

The cross-examination then proceeded to test his opinion as to whether the appellant had sustained a lumbar disc lesion given the absence of a CT scan which Dr Alam said would have been very helpful. Nevertheless he maintained (at Black 41) that:

"clinically he had a lumbar disc lesion"

and at Black 42X-43C that in his experience

"it was almost certain that he had a lumbar disc lesion."

57 It was never put to Dr Alam, nor suggested in addresses, that he was doing other than his best to give objective and truthful evidence based on his clinical findings. The difficulty the doctor had was that he was being "blinkered" by being prohibited from taking into account his most recent examination of the appellant, thus requiring him, as it were, to bifurcate his opinions.

58 The foregoing notwithstanding, the primary judge made the following comment with respect to Dr Alam's oral evidence (at Red 24E-H):

"Dr Alam does not specify his speciality in his report and he gave no evidence in that regard. From his letterhead however it would appear that he is no more than a general practitioner. The assessment contained in his earlier report is stated to be an interim assessment. Despite his desperate efforts when giving evidence to suggest that that could be taken as a permanent prognosis I find myself unable to accept that opinion. He was somewhat baffled by the restrictions placed upon his evidence and I find that he attempted to give evidence favourable to the plaintiff rather than being totalling objective as an expert should be."

59 The point made with total clarity by the primary judge in the above passage from her judgment was that for the reasons given she regarded Dr Alam as being biased in that he attempted to give evidence favourable to the appellant rather than being totally objective as required of an expert. There can be no doubt that this is a classic statement of legal bias. Although she did not use that word, there is no doubt as to what she meant. In these circumstances, and leaving aside for the moment whether she was justified in making that criticism of Dr Alam, it is difficult if not impossible to treat her Honour's reference to Dr Sekel's report being the only one which she found to be "unbiased" as meaning other than precisely that; in contrast to, say, Dr Alam, he was the only medical practitioner who, in his report, attempted to give evidence without favouring one party or the other and in a totally objective manner.

60 Nevertheless, the respondent maintained that her Honour should be given the benefit of the doubt and that although the use of the word "unbiased" was, to say the least, unfortunate, it is not what she intended. I am not prepared to accept that submission.

61 For the reasons I have related above, it seems to me that her Honour knew precisely what she was doing and used the word "unbiased" as justifying her preference for the report of Dr Sekel compared to the oral evidence of Dr Alam. In any event, the fact is that her Honour has used the word "unbiased" in circumstances where she could just as easily have used the word "unreliable" which she had employed in other parts of her judgment when dealing with the evidence of the appellant and Dr Darveniza. To the appellant and, for that matter, to any lay person reading this judgment, there would be no reason for thinking that her Honour was using the word "unbiased" as a synonym for "unreliable" or any other term or that she was using the word otherwise than in accordance with its ordinary dictionary meaning as defined in the Macquarie Dictionary 2nd revised ed as

"not biased; unprejudiced; impartial."

The same Dictionary defines "biased" relevantly as

"a particular tendency or inclination, esp. one which prevents unprejudiced consideration of a question."

62 In my opinion there was no basis in the written evidence or in the oral evidence of Dr Alam which justified the implicit finding of her Honour that, apart from Dr Sekel, the other medical practitioners who examined the appellant, whose reports were tendered without objection and who were not called to give oral evidence, were all biased in favour of the appellant in their opinions. Further, a fair reading of Dr Alam's oral evidence finds no justification whatsoever for her Honour's criticism of him as recorded in [58] above. The foregoing were egregious errors which in my view justify appellate intervention.

Should there be a new trial?

63 The appellant submitted that in view of the error which I have found her Honour to have made, there must be a new trial. However, by Pt 51 r 23(1) of the Supreme Court Rules, this Court is enjoined from ordering a new trial unless it appears to it that some substantial wrong or miscarriage has been occasioned by the primary judge's error. The relevant principles applicable to such a situation were recently summarised by this Court in Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 at [31]–[37]. Relevantly, for present purposes a substantial wrong or miscarriage occurs where the relevant error has deprived the appellant of the possibility of a successful outcome. In order to negate that possibility, it would be necessary for this Court to find that a properly conducted trial could not possibly have produced a different result so that the ordering of a new trial would be an exercise in futility.

64 In my opinion, the ordering of a new trial might well produce a different result. Had there not been an implicit finding that the reports of the medical practitioners called on behalf of the appellant were biased, then it would have been necessary for there to be a finding that in totality they were unreliable and that this was so because the appellant's evidence as to his complaints was itself unreliable. Whether these findings would be made on a new trial is open to question. Certainly, it cannot be said with confidence that a different result could not possibly be the outcome of a new trial. In my opinion, there has been a substantial wrong or miscarriage occasioned by her Honour's error which, because there is the possibility that a new trial may produce a different result, dictates that such a trial would not be an exercise in futility.

The question of costs

65 The primary judge ordered that the appellant pay the respondent's costs of the proceedings. It was properly conceded by the respondent that that order should be set aside given that the appellant was denied procedural fairness with respect to the making of that order. Both parties then invited the Court to determine that question for itself. However, the necessity to do so would only arise if otherwise the appeal were to be dismissed. As there is to be a new trial, her Honour's order for costs will be set aside and the costs of the first trial will be reserved to the judge hearing the new trial.

Conclusion

66 For the foregoing reasons, I would propose the following orders:

(1) Appeal allowed;

(2) Set aside the verdict, judgment and orders made by her Honour Judge English on 19 December 2003 and in lieu thereof order that there be a new trial on the issue of damages;

(3) Order that the costs to date of the proceedings in the District Court be reserved to the judge hearing the new trial;

(4) Order that the respondent pay the appellant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

67 MATHEWS AJA: I agree with Tobias JA.

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