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Wadsworth v Hamilton

Wadsworth v Hamilton

Case [2022] NSWSC 396 8 April 2022

Expert Evidence

Admissibility of Evidence

Limitation Periods

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wadsworth v Hamilton [2022] NSWSC 396
Hearing dates: 16 March 2022
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The notice of motion is dismissed.
(2) The costs of the notice of motion filed on 17 December 2021 be costs in the cause.
(3) The parties have leave to approach my associate within seven days with an agreed timetable for the filing of evidence.

Catchwords:
EVIDENCE – expert evidence – advance rulings – plaintiff’s rehabilitation expert provided report and subsequently died – unfair prejudice under Evidence Act s 135 – unavailability for cross-examination – cost of responding to two expert reports – Practice Note limits parties to one expert per specialty – second defendant yet to obtain its expert evidence – premature application under s 192A – notice of motion dismissed

Legislation Cited:
Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW), ss 63, 67, 69, 135, 137, 192A

Cases Cited:
Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322
Colby v The Queen [1999] NSWCCA 261
Decision restricted [2022] NSWCCA 19
KH v R [2014] NSWCCA 294
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
Searle v Commonwealth of Australia [2018] NSWSC 105
Seven Network v News Ltd [2002] FCA 1348; (2006) 224 ALR 317
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category: Procedural rulings
Parties: Wayne Wadsworth (Plaintiff/Respondent)
Grace Hamilton (First Defendant)
Mina Gobrial (Second Defendant/Applicant)
Representation:
Counsel:
Mr M Perry (Plaintiff/Respondent)
Ms F McGinley (First Defendant)
Mr M Hutchings (Second Defendant/Applicant)
Solicitors:
Gerard Malouf & Partners (Plaintiff/Respondent)
Mills Oakley (First Defendant)
HWL Ebsworth Lawyers (Second Defendant/Applicant)

File Number(s): 2021/00075661
Publication restriction: Nil.

Judgment

On 17 March 2021, the plaintiff, Mr Wayne Wadsworth, filed a statement of claim against the first and second defendants. The first defendant, Ms Grace Hamilton, is a qualified practising podiatrist and the second defendant, Dr Mina Gobrial, is a qualified practising medical practitioner. The plaintiff brings a claim in negligence based on an allegation that treatment he received by the first defendant led to medical complications the second defendant failed to properly treat.
By notice of motion filed on 17 December 2021, the second defendant seeks an order pursuant to s 192A of the Evidence Act 1995 (NSW) that the expert report of Dr David Bowers dated 12 April 2021 is inadmissible in these proceedings. The plaintiff opposes the making of the order and reserves his right to rely on Dr Bowers’ report. The first defendant adopts the position of the second defendant.
This motion came before in my capacity as duty judge. The second defendant relied upon an affidavit of his solicitor, Ms Leonie Beyers, sworn on 16 December 2021 and her supplementary affidavit sworn on 10 March 2022. The plaintiff relied on an…

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 Wadsworth v Hamilton

Details

AGLC: Wadsworth v Hamilton [2022] NSWSC 396
Case: [2022] NSWSC 396
Decision Date: 08 April 2022

CaseChat Overview and Summary

The plaintiff, Mr. Wadsworth, initiated proceedings against the defendants, Mr. Hamilton and another, seeking damages for personal injuries sustained in an incident. The case was heard in the Supreme Court of New South Wales. The dispute centred on the admissibility of expert evidence provided by the plaintiff's rehabilitation expert, who subsequently passed away before the trial, leaving only a report for consideration. The defendants argued that the deceased expert's unavailability for cross-examination would result in unfair prejudice, invoking Section 135 of the Evidence Act. Additionally, they contended that the cost of responding to two expert reports was excessive due to the Practice Note that limits parties to one expert per specialty. The second defendant, who had yet to obtain its expert evidence, filed a premature application under Section 192A of the Act, seeking to exclude the plaintiff's expert report.

The court needed to determine whether the deceased expert's report could be admitted despite the expert's unavailability for cross-examination. It also had to consider the implications of the cost of responding to two expert reports and the applicability of the Practice Note in this context. Furthermore, the court had to assess whether the second defendant's application to exclude the plaintiff's expert report was premature and, if so, whether it warranted dismissal.

The court found that the deceased expert's report could be admitted under Section 135 of the Evidence Act, as the plaintiff had demonstrated that the expert was unavailable due to death and that it was not due to the plaintiff's want of diligence. The court held that the cost of responding to two expert reports was not sufficient grounds to exclude the report, as the Practice Note was not intended to limit the number of experts but rather to control costs. The court also dismissed the second defendant's application as premature, as the defendant had not yet obtained its own expert evidence. Consequently, the notice of motion was dismissed.

The court's final orders were that the deceased expert's report was to be admitted as evidence, the second defendant's application was dismissed, and the defendants were to bear their own costs associated with the premature application.

Orders