TB and DC v State of New South Wales
[2014] NSWSC 1145
•14 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: TB and DC v State of New South Wales & Anor [2014] NSWSC 1145 Hearing dates: 11 - 14 August 2014 Decision date: 14 August 2014 Jurisdiction: Common Law Before: Campbell J Decision: I reject paragraphs 2, 3 and 4 on page 2 of the report of 9th June 2013.
Catchwords: EVIDENCE - admissibility - opinion; expert - medical report - assumptions as to medical history where no evidence to support them - whether common law rule in Ramsay v Watson applies to the Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 60 and 136 Cases Cited: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844;
Ramsay v Watson (1961) 108 CLR 642Category: Interlocutory applications Parties: TB (Plaintiff)
DC (Plaintiff)
State of New South Wales (First Defendant)
Carolyn Quinn (Second Defendant)Representation: Counsel: Dr A S Morrison SC with K Pryde and N Morrissey (Plaintiffs)
P Wass SC with I Harvey (Defendants)
Solicitors:
Graham Jones Lawyers (Plaintiffs)
Crown Solicitors Office (Defendants)
File Number(s): 2008/00289325 2008/00289326
EX TEMPORE Judgment
The plaintiff has tendered the report of Dr Michael Diamond of 9th June 2013. The defendant objects to the 2nd, 3rd and 4th paragraphs appearing on page 2 of that report. Those paragraphs record a history received by the doctor of Ms TB's symptomatic response to attending a mediation between the parties in December 2012. I have already rejected part of paragraph 2 on the basis that it discloses the course of the mediation which is to be kept confidential.
Ms Wass, of Senior Counsel, who appears with Mr Harvey for the defendants, has a broader objection than that. She says that the history contained in the report has no evidential basis. Effectively she is invoking the rule in Ramsay v Watson (1961) 108 CLR 642 that, in circumstances where it is clear that there will be no evidence supporting the assumptions made by an expert, the recounting of those assumptions in the expert's report should be rejected. It is true that there is no evidence in the witness statement of TB, which has been received, or otherwise in the evidence, fleshing out the matters contained in the paragraphs objected to.
In expressing his opinions, Dr Diamond, at page 6 in the first paragraph appearing under his recitation of the first question posed for him, refers, by necessary implication, to the contentious material. He uses that material to support his conclusion that TB remains a vulnerable individual, easily upset by external stresses and challenges. It seems to me that the history he recounts as having been given by her, is relevant for the purpose of understanding that expression of opinion and is accordingly, prima facie, admissible for that purpose.
The concern of the defendants, of course, is the operation of s 60 (1) Evidence Act 1995 (NSW) which provides:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the asserted fact.
The effect of s 60, as is well understood, is that material which would otherwise be hearsay, if admitted for a purpose, such as to explain the basis of the opinion expressed by a doctor, then becomes evidence of the fact.
Commonly in personal injuries litigation objection is made to matters of history, or an application is made under s 136 to limit the use that could otherwise be made of histories in medical reports for the purpose of excluding the operation of section 60. Judges commonly accede to such applications on the basis that the plaintiff will give evidence of all relevant matters and the question of the validity, if I may put it that way, of the expert opinion will depend upon whether the facts assumed by the expert are sufficiently like the facts proved to justify the opinion, in accordance with the judgment of the High Court of Australia in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844.
There is no challenge to the opinion of Dr Diamond that TB suffers, inter alia, from a chronic post-traumatic stress disorder and that the symptoms of that condition include what is sometimes referred to as "flashbacks" when events remind the sufferer of the causative event. I would understand the opinion expressed by Dr Diamond, that I have paraphrased in this judgment, as a reference to that phenomenon; he used the expression "significant triggers" to summarise the same matter.
There is no serious issue that TB suffers symptoms of that type and it seems to me that the specific recounting of what happened at the mediation is unnecessary to understand his expression of opinion, which will not be challenged. Accordingly those matters of history unsupported by direct testimony are not relevant for a purpose other than proof of the asserted fact.
I think that the rule in Ramsay v Watson survives the enactment of the Evidence Act 1995. TB will not give evidence of the matters recorded in the passage objected to and I uphold the defendants' objection.
I reject paragraphs 2, 3 and 4 on page 2 of the report of 9th June 2013.
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Decision last updated: 21 August 2014
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