Waring v Roberts (Ruling No.1)
[2024] VCC 1158
•26 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-02564
| John Waring | Plaintiff |
| v | |
| Neil Roberts | Defendant |
---
JUDGE: | JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2024 | |
DATE OF RULING: | 26 July 2024 | |
CASE MAY BE CITED AS: | Waring v Roberts (Ruling No.1) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1158 | |
RULING - EX TEMPORE
---
Subject:EVIDENCE - PERSONAL INJURY
Catchwords: Admissibility of evidence – Reliance by plaintiff on unserved reports of treating neurosurgeon – Reports previously served in Serious Injury proceedings - - Prejudice to defendant – Interests of justice
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:-
Ruling: Evidence admitted subject to redaction
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC & Mr A Theodore | Arnold, Thomas & Becker |
| For the Defendant | Ms F Spencer SC & Ms J Zhu | Solicitors for the TAC |
EX TEMPORE R U L I N G
HER HONOUR: The defendant objects to the admissibility of three reports of Mr Ales Aliashkevich dated 9 September 2022, 25 October 2022, and 25 August 2023. Mr Aliashkevich was the plaintiff's treating neurosurgeon. The plaintiff was referred to Mr Aliashkevich for neurosurgical assessment.
In his report dated 9 September 2022, the first report, Mr Aliashkevich notes the following under the heading 'medical problems': chronic neck and right arm pain, chronic low back pain, chronic headache, C3 compression fracture, right C3-4 facet arthropathy, severe C6-7 disc degeneration, left dominant C4-5 foraminal narrowing, history of motorbike accident in 2016, history of work related injury on 12 May 2020, history of lumbar steroid injection, post-traumatic stress disorder.
In his first report, Mr Aliashkevich notes that Mr Waring attended his surgery complaining of 'chronic pain affecting the right side of his neck, shoulder, and arm with weakness and numbness in his right hand and fingers after a motorbike accident in 2016'. Mr Aliashkevich conducted an examination and reported on a cervical spine MRI taken on 25 July 2022. The clinical indication for the MRI was noted as 'MVA a few years ago. Injury to C-spine. Pain recently increased.'
Mr Aliashkevich then provided a management plan in which he stated:
Given John's complex chronic right neck, shoulder, and arm pain with arm and hand weakness and numbness, I recommended cervical spine SPECT/CT and flexion/extension X-rays. Depending on the result, he might need diagnostic therapeutic steroid injections and neurophysiological testing. In the worst case scenario, he might need multi-level surgical decompression.
Mr Aliashkevich's report of 25 October 2022, the second report, notes the same medical problems, including the motorbike accident in 2016. He notes a SPECT/CT on 21 September 2022 and includes the reported findings and the findings of a cervical spine MRI of 25 July 2022. Under 'management plan', he notes that the plaintiff suffered complex chronic right neck, shoulder, and arm pain with hand and arm weakness and numbness consistent with aggravated multi-level spondylosis, C3-4 facet arthropathy, and C6-7 discopathy.
We discussed ongoing conservative management options, neck immobilisation, medications, exercises, interventional pain procedures, steroid injections, and surgery. I recommended trying diagnostic therapeutic right C3-4 facet joint steroid injection and provided my referrals.
In the future, John might need neurophysiological testing. In the worst case scenario, he could be a candidate for multi-level cervical decompression.
In his report of 25 August 2023, the third report, Mr Aliashkevich refers Mr Waring to the Mind Body Pain Specialists for assessment and management. He notes that he saw Mr Waring that day and that Mr Waring had undergone a right C3-4 facet joint injection on 11 November - he says 23, but it is clear that it should be 2022 - and experienced significant relief in his chronic neck and right arm pain for approximately three months. He noted that Mr Waring was troubled by lower back and right leg pain.
He then repeated the findings on SPECT/CT and MRI previously reported and 'under management plan' noted:
John suffered complex chronic right neck, shoulder, and arm pain with arm and hand weakness and numbness consistent with aggravated multi-level spondylosis, C3-4 facet arthropathy, and C6-7 discopathy. His positive responses to the right C3-4 facet joint injection confirmed that this pathology contributed to his chronic symptoms.
We discussed ongoing conservative management options, neck immobilisation, medications, exercises, further interventional pain procedures, steroid injections, radio frequency denervation, and surgery. I recommended trying right C3-4 facet joint radio frequency denervation and provided a referral to a pain specialist.
In the future, John might need neurophysiological testing. In the worst case scenario, he could be a candidate for multi-level cervical decompression.
The plaintiff served the first report on the Transport Accident Commission by email on 12 September 22 in relation to his serious injury application which was filed on 6 December 2022. I do not have the date of the service of the second report, but I understand that it was served in relation to that serious injury application. He says that the general practitioner records, which were also relied on during the serious injury application, also included the first and second report.
In his affidavit filed in the serious injury application and dated 5 December 2022, Mr Waring says that he had been advised by Mr Aliashkevich that if conservative treatment does not work, he could be a candidate for multi-level cervical decompression.
The plaintiff in this proceeding served a report of Dr Weissman dated 7 March 2023. In that report, Dr Weissman notes that he read the reports of Dr Aliashkevich and refers to the medical problems identified by Mr Aliashkevich. The plaintiff obtained and served reports of Mr Thomas Kossman in this proceeding dated 28 July 2020 and 10 May 2024. Mr Kossman notes that Mr Waring was referred to Mr Aliashkevich and includes in his report references to Mr Aliashkevich's opinion that in the worst case, Mr Waring may need multi-level cervical decompression. Mr Kossman sets out the substance of Mr Aliashkevich's subsequent reports and treatment. Mr Kossman undertook a physical examination of the thoracolumbar left spine, left and right hip, left and right knee, left and right ankle, left and right shoulder, left and right elbow, left and right wrist, and left and right hand.
He diagnoses the following injuries from 21 December 2016 accident: superior endplate fractures of T3 and T4; compression fracture of superior endplate T12 vertebral body with approximately 20 per cent loss of height; cervical spondylosis; and tear in the medial collateral ligament; and an anterior root attachment lateral meniscus tear of the right knee. Mr Kossman noted:
Mr Waring did not complain about pain issues in his cervical spine in today's examination. Therefore, I do not recommend further investigations or treatment. Should he complain about pain issues and/or movement restrictions in his cervical spine, I recommend then referral to an orthopaedic surgeon with an interest in spine and a neurosurgeon for further investigations and treatment.
The plaintiff also relies on a report of Dr Eman Awad dated 28 May 2024, who records that he had been provided with the three reports of Mr Aliashkevich. Mr Awad notes that in relation to the neck, 'He tells me he has neck pain most of the time that he describes as a 'muscle strain'. He has no radiation and tells me that his pain score is seven out of 10.' Dr Awad diagnosed an aggravation of cervical spondylosis, among other injuries.
The plaintiff also served a report of Blake Winter, engineer, who notes that he has reviewed Mr Aliashkevich's third report and has included in his report the observation that Mr Waring might be a candidate for multi-level cervical decompression surgery.
It is common ground that none of the first, second or third reports were served in this proceeding. It is common ground that the third report has not been served in any proceeding. The plaintiff says that in circumstances where the first and second reports had been served in the serious injury application and all reports have been referred to in other served reports, it could not be said that the defendant is taken by surprise or is unaware of the content of Mr Aliashkevich's opinion.
Further, it was reasonable for the plaintiff to assume that the defendant had the first and second reports, as they had been provided in the serious injury application. Mr Waring had attested to his treatment with Mr Aliashkevich in his affidavit filed in that proceeding. The injury to his neck is pleaded in the statement of claim, and the defendant could not be said to be unaware that he makes a claim for aggravation of injury to his neck.
The defendant says he is highly prejudiced by the nonservice of those reports and they ought not be admissible. Although the particulars of injury include injury and/or aggravation of injuries to the cervical spine, the defendant was not in a position to know that the plaintiff would be making a case that the 2016 accident was the cause or the potential cause of his need or potential need for multi-level spinal decompression surgery.
The defendant only became aware that the plaintiff was pursuing a claim in relation to the cervical spine when the court book was served on 22 July, the day before trial. I will move now to my findings.
Order 33.07 of the County Court Civil Procedure rules require that a plaintiff shall serve on each other party in a proceeding any hospital or medical report which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence or which otherwise the plaintiff intends to use at trial. The plaintiff shall serve such reports at such time as the court directs.
By Order dated 2 August 2023, the parties were required to serve all medical and expert reports concerning damages and liability by 16 April 2024 and any new medical reports or expert reports on damages and liability could not be served after 11 June 2024 without leave of the court.
Accordingly, Mr Aliashkevich's reports, which have not been served in this proceeding, notwithstanding that the first and second report was served in another proceeding, can only be relied on with the leave of the court.
This trial is being heard nearly eight years after the subject accident. The defendant is now 91 years old. In these circumstances, neither party wants an adjournment which might otherwise have been a way to resolve any unfairness to the defendant if the Aliashkevich reports are admitted. My primary obligation is to ensure the just, efficient, cost‑effective and timely disposition of the real issues in dispute.
These reports go to two of the central issues in dispute. Whether the December 2016 accident caused Mr Waring's injuries, and which of those injuries, and the assessment of damages which would necessarily include a prognosis of Mr Waring's condition. I am persuaded that the non‑service of these reports has caused the defendant prejudice. It is not sufficient for the plaintiff to say that the defendant had two of the three reports already and is therefore not taken by surprise.
The particulars of injury are broad, it is not uncommon for many injuries to be pleaded that are not ultimately relied on at trial. It was not unreasonable for the defendant, in the absence of any report specifically relating to the neck, to assume that the neck injury was not going to be pressed at trial.
There are no other reports that suggest the plaintiff is a candidate for multi‑level cervical decompression. Indeed no other experts suggest the neck requires or is likely to require any specific treatment as far as I am aware. Mr Kossman diagnoses a cervical spondylosis and notes in his report of May 2024 that the plaintiff didn't complain about neck pain and he does not recommend treatment but that Mr Waring would require assessment if there were neck complaints in the future.
Dr Awad notes neck pain and diagnoses an aggravation of cervical spondylosis. It was reasonable for the defendant to assume that if the injury to the neck was to be relief on, the injury claimed was neck pain or an aggravation of spondylosis that required no specific treatment. It is also apparent that Mr Aliashkevich does not have a complete medical history.
As a treating doctor, he would not be expected to take the sort of history that a medico‑legal examiner might take, and therefore the only accident he mentions other than 2016 motor vehicle accident, the subject of this proceeding, is a WorkCover incident in 2020.
It is not clear whether he is aware that there were, by my count, at least nine incidents or accidents prior to the 2016 accident, and two subsequent incidents or accidents that may have caused or contributed to Mr Waring's injuries. He notes that Mr Waring complained of chronic pain in his neck, shoulder, arm and with weakness in his right hand and fingers after the motorbike accident in 2016.
This does not demonstrate any awareness that some or all of those complaints were or may have been in existence prior to 2016 accident. If he was to give evidence, he could be cross-examined on those matters and his awareness of the prior history and his view about whether that prior history impacts on his assessment of the cause of Mr Waring's current condition.
However, I accept the submission of the defendant that a treating neurosurgeon who comes along to give evidence is likely to be a particularly persuasive witness, particularly in front of a jury, in circumstances where the defendant has been denied the opportunity to put on a rebuttal witness. For those reasons, I consider the reports are prejudicial or potentially prejudicial to the defendant.
On the other hand, the plaintiff has been to see Mr Aliashkevich as a treating doctor. This is not a medico‑legal opinion. He has had treatment with Mr Aliashkevich and Mr Aliashkevich referred him for facet joint injections which he underwent in November 2023 and has referred him for pain management or to a pain specialist. Not allowing the reports in would leave a gap in the evidence and an unanswered question about what, if anything, Mr Waring has done about his claimed neck pain.
It is a fact that Mr Waring has had treatment for his neck pain and that is a fact that I consider the jury is entitled to know. Given that my primary obligation is to ensure a just trial, I consider it would not be in the interests of justice to withhold the fact of Mr Waring's treatment with Mr Aliashkevich from the jury.
This leaves us in a difficult position, but doing the best I can to minimise the prejudice to the defendant caused by the admission of Mr Aliashkevich's reports in circumstances where they have not been served, I consider that the following redactions should be made to those reports which are otherwise given leave to be admitted.
In the first report, the words 'After a motorbike accident in 2016' should be removed from the second sentence under 'History' at plaintiff's court book p109; and the words, 'Depending on the result he might need diagnostic therapeutic steroid injections and neurophysiological testing. In the worst case scenario, he might need multi‑level cervical decompression' under the heading 'Management plan' at plaintiff's court book 110.
In the second report, the words 'In the future, John might need neurophysiological testing. In the worst case scenario, he could be a candidate for multi‑level cervical decompression' at plaintiff's court book 113; and the same words at plaintiff's court book 114 which seems to be a doubling up. There is some slight oddness about the copying. So part of the report seems to have been repeated at plaintiff's court book 114.
In the third report, the words 'In the future, John might need neurophysiological testing. In the worst case scenario, he could be a candidate for multi‑level cervical decompression' at plaintiff's court book 117. If other doctors' reports that are to be relied upon refer to Mr Aliashkevich's opinion that multi‑level cervical decompression might be required in a worst case scenario, those words ought to be redacted from those reports.
Unless the defendant requires Mr Aliashkevich for cross‑examination, the three reports will be tendered without Mr Aliashkevich giving evidence. If the defendant does require Mr Aliashkevich for cross‑examination, his evidence‑in‑chief should be confined to his reports as redacted. That is, his presenting complaints and his treatment and not opine, in‑chief on causation or prognosis.
If causation and prognosis are raised in cross‑examination, then that is a matter for the defendant and it would open the door for any re‑examination on those topics. With those redactions and those restrictions on the evidence that can be called in chief, I give the plaintiff leave to rely on the three reports of Mr Aliashkevich.
0
0
0