State Forests of NSW v Scott Leslie Dinnerville - [2004] NSWCA 127

NEW SOUTH WALES COURT OF APPEAL

CITATION: STATE FORESTS OF NSW v Scott Leslie DINNERVILLE [2004] NSWCA 127

FILE NUMBER(S):
40885/03

HEARING DATE(S): 6 April 2004

JUDGMENT DATE: 06/04/2004

PARTIES:
STATE FORESTS OF NSW v Scott Leslie DINNERVILLE

JUDGMENT OF: Mason P Giles JA Ipp JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 51/01

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
Appellant: D G T Nock SC
Respondent: D Campbell SC / R F Wilkins

SOLICITORS:
Appellant: Leigh Virtue & Associates
Respondent: Boyd & Longhurst

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 4O885/03
MASON P
GILES JA
IPP JA
Tuesday 6 April 2004

STATE FORESTS OF NEW SOUTH WALES v SCOTT LESLIE DINNERVILLE

JUDGMENT

MASON P: This is an application for a new trial with respect to a trial in the District Court before judge and jury. Part 51 Rule 23 of the Supreme Court Rules stipulates that the Court shall not order a new trial in such a matter unless it appears to the Court that some substantial wrong or miscarriage has been occasioned.
The respondent, to whom I shall refer as the plaintiff, sued the appellant, to whom I shall refer as the defendant, for damages in the District Court. The plaintiff had been employed as a field worker between about February 1994 and February 1997. His claim was that the employer was negligent in requiring him to prune trees with a new type of shears, introduced by the employer, that were said to have caused injuries to his right wrist and hand, and damage to the carpal tunnel in the right wrist.
The trial took place at Orange before Williams DCJ and a jury of four. The main issues were negligence and whether the plaintiff’s injuries were work-related and continuing. A set of agreed questions were used as the basis of addresses by counsel and were put to the jury to assist them. Nevertheless, the jury brought in a general verdict in the plaintiff’s favour in the sum of $283,062.68 and the learned trial judge entered a verdict and judgment accordingly (subject to agreed statutory adjustments: see Red 9). The jury’s finding of negligence is not in dispute in the appeal.
The appellant seeks the new trial because of the directions given or not given to the jury as to how they should resolve the medical issues; in particular, issues as to any conflicts between the testimony of doctors who gave oral evidence and were cross-examined on it and the testimony of doctors who were not called to give oral evidence and whose reports were simply read to the jury.
Part 28, Rules 8 and 9 of the District Court Rules prescribe procedures for the exchange and use of expert reports. Except by leave or consent, oral expert evidence in chief is not admissible unless that evidence is covered by the expert’s report served in accordance with Rule 8. This…

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 State Forests of NSW v Scott Leslie Dinnerville

Details

AGLC: State Forests of NSW v Scott Leslie Dinnerville [2004] NSWCA 127
Case: [2004] NSWCA 127
Decision Date: 6 April 2004

CaseChat Overview and Summary

The case of *State Forests of NSW v Scott Leslie Dinnerville* involved an appeal to the Court of Appeal of New South Wales concerning the admissibility and weight of medical evidence presented in a trial. The dispute centred on the plaintiff's claim, where medical reports from the defendant's doctors were read into evidence rather than the doctors giving oral testimony and being subject to cross-examination.

The primary legal issues before the Court of Appeal were whether the trial judge had misdirected the jury regarding the weight to be given to the defendant's medical evidence, specifically concerning the fact that these witnesses had not been cross-examined. The appellant argued that a statement by the judge that the evidence "has not been able to be challenged" was a misdirection, and that the summing up lacked balance by not explicitly instructing the jury not to draw adverse inferences from the defendant's witnesses not giving oral evidence.

The Court of Appeal reasoned that the trial judge's statement that the evidence "has not been able to be challenged" was capable of being interpreted in a way that did not constitute a misdirection. It was held that this statement could reasonably have been understood by the jury as referring to the historical fact that the doctors were unavailable for cross-examination, rather than suggesting any inherent disadvantage to the defendant's case or advantage to the plaintiff's. Furthermore, the judge had explicitly directed the jury that it was entirely a matter for them to decide what weight to give to the evidence presented through reports, and that they were entitled to prefer oral evidence over read reports, but were not obliged to do so. The court found that the summing up, when considered in its entirety, adequately conveyed that the jury had the discretion to assess the weight of all evidence, including that presented by way of read reports.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for the defendant relied on the rules and asserted his right to tender the report. The debate continued with references to s 135 of the Evidence Act. Ultimately, portions of the report were excised by agreement or direction of the trial judge. The upshot was that counsel for the defendant read the balance of Dr Potter’s report and then closed the defendant’s case. Before counsel addressed the jury, the judge told the jury (Black 267) that[W]hat they say to you is not evidence in the case, the evidence in the case is the witnesses that you’ve heard and the medical reports that you’ve heard read out and the various documents and things but their argument will hopefully be helpful to you in understanding what they say your decision should be at the end of the day. There was considerable discussion in the absence of the jury about the directions that should be provided to the jury. No question was raised about directions concerning the manner in which the jury should go about resolving the medical issues in the light of the two different ways in which the medical evidence had been presented at trial. Counsel for the defendant addressed first, basically following the schema of the previously agreed set of questions that the judge was going to present to the jury. Portion of his address of relevance to the issues in the appeal was as follows (Black 279, my emphasis added):The medical evidence is clear, he’s got a carpal tunnel problem. The dispute in the medical evidence is whether it’s ongoing related to his employment or not. The defendant’s doctors say it isn’t, the plaintiff’s doctors say it is. I’ve read to you the reports of Dr Harvey who saw him in 2001 and 2003, Dr Edwards who saw him in 2001 and 2003, Dr Hughes who saw him in 2002 and Dr Potter, a rheumatologist. True it is that they’re not here to be cross-examined. The mechanics of doing that need not worry you but they’ve committed their assessments to writing and although you may not give them as much weight as the others, nevertheless you can’t dismiss them unless you think they’re out of court altogether so you’d give them in my submission the same weight as you give the plaintiff’s evidence - medical evidence. I hadn’t intended reading out in detail those reports again because you’ve listened patiently and I wouldn’t insult your intelligence by doing it all over again but I’ll just say this if I may. He then proceeded to state the high points of the defendant’s medical evidence. Counsel for the plaintiff commented generally on the comparison between the plaintiff’s case that had been mainly presented through witnesses who gave oral evidence and were cross-examined and the defendant’s case where this had not happened. The comment I think was broad enough to extend to the medical controversy, but it was primarily in the context of liability issues. What Mr Campbell said at Black 280-281 was robust advocacy but it is not suggested in this Court that it was improper or the basis of any miscarriage.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The judge told the jury that it was open to the jury to place what weight they thought appropriate upon the evidence of the witnesses whose reports were read out, witnesses who in Kirby P’s words in Ziade v NSW Ministerial Insurance Corporation NSWCA unrep 26 March 1993 spoke “only quietly from their cold pages”. Senior counsel for the appellant accepted that there was nothing wrong in this portion of the directions. His complaint I think can be summarised in two propositions. The first is that there was a positive misdirection in the statement that “their evidence has not been able to be challenged”. The second (and it is not unrelated) is a submission that the summing up lacked proper balance because the jury were not told that they should not draw an inference adverse to the defendant’s case from the fact that the defendant’s witnesses had not given oral evidence. The submission referable to the second point was that the summing up in the passage I have mentioned and in its totality unfavourably compared the cases of the plaintiff and the defendant, particularly where the jury were told that it was open to them to put into the scales, no doubt favourably to the plaintiff, the fact that the plaintiff’s doctors had given evidence and presented themselves for cross-examination. As to the first point, the way that Mr Nock SC, developed the issue was that the statement that the doctors’ evidence “has not been able to be challenged” effectively misrepresented the effect of Rule 9, because it was open to the plaintiff to challenge the evidence by cross-examination subject to compliance on the plaintiff’s part with Rule 9. If the direction had been plainly to that effect and if objection had been taken, then there would have been cause for concern. But I think that the statement was capable of another meaning and in the absence of any challenge I would not infer a miscarriage. Rather, I would infer that the other meaning was the meaning which all present at the time thought that it carried. The other meaning was in the context of the known fact that the doctors were unavailable to be cross-examined and accordingly had not been presented as oral witnesses. I think the jury would have construed the remark as merely referring to this historical fact without intending to suggest any adverse weight to the defendant’s case or any adverse weight in favour of the plaintiff’s case. The second more general point arises in one sense from what was not said in the passage I have set out. The same can be said for the later passages in the summing up, in which the judge reiterated that it was entirely a matter for the jury to decide what weight to give to the evidence of the doctors that was presented solely through the reading of their reports. At one stage, (p13 of the summing up), the judge specifically directed the jury about how they should go about resolving such conflicts as existed between the evidence of the consulting rheumatologists, Dr Bertouch, who was called, and Dr Potter, whose report was read. The judge said:The fact that a witness, for example, the two rheumatologists whose evidence is before you - Dr Bertouch who was called, and Dr Potter whose report was read - at the end of the day and this is entirely a matter for you, you might come to the conclusion that we prefer Dr Bertouch because we’ve had the opportunity of hearing his evidence - we’ve only just had Dr Potter’s read to us, we do not know what he would have been like if he had come along and given evidence. You can do that, whether you do it or not is a matter for you. But you are entitled again, when looking at the doctors’ evidence, to look at all the other evidence in assessing that evidence. You are entitled to look at the plaintiff’s evidence. You are entitled to look at the plaintiff’s father’s evidence et cetera.