Welsh v Carnival PLC trading as Carnival Australia (No 2)

[2016] NSWSC 1281

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Welsh v Carnival PLC trading as Carnival Australia (No 2) [2016] NSWSC 1281
Hearing dates:	12 September 2016
Date of orders:	12 September 2016
Decision date:	12 September 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [35]
Catchwords:	EVIDENCE – Expert evidence – No exposition of reasoning process leading to expression of opinion   PRACTICE AND PROCEDURE – Application to call oral evidence from expert – Where passages of report rules inadmissible – Whether circumstances exceptional so as to allow oral evidence to be called
Legislation Cited:	Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 R v Buckland [2000] 1 WLR 1262
Category:	Procedural and other rulings
Parties:	Graham Welsh - Plaintiff Carnival PLC trading as Carnival Australia - Defendant
Representation:	Counsel:    Mr R Royle & Ms F Graham - Plaintiff Mr M McCulloch SC & Ms T Berberian - Defendant   Solicitors: Slater and Gordon Lawyers - Plaintiff HWL Ebsworth - Defendant
File Number(s):	2012/198495
Publication restriction:	Nil

Judgment – EX TEMPORE (revised)

1. The plaintiff in these proceedings seeks to rely on two medical reports of Dr Todd Cameron, one of the plaintiff’s treating General Practitioners.  The reports are dated 19 July 2011 and 29 August 2013, and they appear at p 366 and following and p 370 and following of exhibit A, which is the plaintiff's Court Book. 

2. Senior counsel for the defendant took objection to the whole of both reports of Dr Cameron.  That objection resulted in counsel for the plaintiff indicating that particular parts of each report were not relied upon. 

3. The essential objection raised by senior counsel for the defendant to those parts of the reports which remain concerns what is said to be a lack of exposition of Dr Cameron's reasoning process to support the various opinions he has expressed. In the event that I were to uphold the objection, it was the position of Counsel for the plaintiff that he should be granted leave pursuant to the provisions of r. 31.28 of the Uniform Civil Procedure Rules2005 (NSW) (“the Rules”) to call oral evidence‑in‑chief from Dr Cameron. Senior Counsel for the defendant also objected to that course.

4. Against that background, it is firstly necessary for me to set out those remaining parts of each report, the tender of which is pressed. In respect of the first report, the first relevant passage appears at p 368 of exhibit A and is in the following terms:

"He describes depressive symptoms and the features have an almost Post traumatic Stress Disorder feature to them in that the thoughts and feelings crash into his consciousness on a daily basis irrespective of his activity and preoccupation with tasks.  I suspect on the balance of probabilities if there were any improvement it would be slow, and I would be uncertain as to how much of the "gap" to his pre‑injury levels of functioning could be closed."

5. In the course of argument, counsel for the plaintiff accepted that this passage did not contain any exposition of Dr Cameron's reasoning.  It was in these circumstances that he submitted that he should be granted leave to call oral evidence from Dr Cameron for the purpose, amongst other things, of eliciting evidence of those reasons.

6. The second passage of the first of Dr Cameron's reports also appears at p 368 and is in the following terms:

"As a consequence of these events there has been a substantial diminution of Graham's cognitive skills, his imaginative and problem solving skills, basic working memory, social pleasures and sense of self‑esteem to name a few.  This has subsequently related in less enjoyment in life and less opportunities in his workplace and in his work prospects now having lasted some 2 years.  There does not appear to be an apparent course of change to the above present state, though one anticipates there may be some slight improvement."

7. Counsel for the plaintiff submitted that there was, within this passage, a description of a diminution of the plaintiff's cognitive skills. However, as I understood it, counsel again accepted that no actual reasoning process was exposed.  In these circumstances that a further application for leave to call oral evidence from Dr Cameron was made.

8. Turning to the second of the two reports, the first passage to which objection is taken appears at p 371 in the following terms:

"Over the following months at several consultations much of our conversation was around elevated stress levels and the risks financial and otherwise he felt he had been forced to take in setting his own business up after departing his role as Simonds Homes."

9. The second passage appears on the same page and relates, in particular, to testing which was referred to by Dr Cameron as having been administered to the plaintiff.  That passage is in the following terms:

"Throughout this time I have recorded several measures of the 'Kessler 10' a questionnaire designed to measure psychological stress and these have ranged between 33 and 35 the most recent being 33 in January 2013.  The maximum score is 50 indicating severe stress and the minimum score is ten, indicating no stress.  Thus one could deduce Graham has experienced moderately high levels of psychological distress spanning this period of time 6 March 2012 to 10 January 2013."

10. The third pasage of the second report to which objection has been taken commences on p 372 of exhibit A and is encapsulated in the last two paragraphs of the report in the following terms:

"After one further visit I then caught up with Graham on 19 August 2013 he revealed he had trialled the medication for four weeks and felt little improvement in the ‘negative aspects’ of his mental health and his feeling was that it ‘dulled his concentration’ and he felt somewhat ‘dissociated’ on the medication (again, relatively common side effects).

During the period of time recounted above the ongoing mental health issues remained much the same.  Despite a marked improvement in his physical health (both in biometric parameters objectively and subjectively) as a result of his own efforts and the effects of the 'sleeve gastrectomy' there was no material change in his mental health.  That is to say Graham did not benefit from his improvement in physical health with regard to his perceived of his quality of life, his cognitive function, his pleasure extracted from life and his basic drive and creativity."

11. Counsel for the plaintiff submitted that each of the passages to which objection was taken was written in a particular style which was typical of that generally adopted by medical practitioners.  He submitted that in those circumstances, some latitude should be adopted in determining whether or not the particular parts of the report were admissible.  Counsel for the plaintiff further submitted that those parts of the reports to which objection was taken encapsulated matters which were open to Dr Cameron to further explain by oral evidence.

12. There are two particular legislative provisions which bear upon resolution of these issues. The first is s 79 of the Evidence Act 1995 (NSW) (“the Act”), which is in the following terms:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

13. The second is r. 31.28 of the Rules which is in the following terms:.

31.28 Disclosure of experts’ reports and hospital reports

(cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)

(1) Each party must serve experts’ reports and hospital reports on each other active party:

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties:

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

14. Given the competing positions of the parties, there are two broad questions to be resolved.  The first is whether those parts of the reports which I have identified, and to which objection has been taken, are admissible.  The second is whether, in all of the circumstances, the application made for leave to call oral evidence from Dr Cameron ought be granted.

15. In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, Heydon JA (as his Honour then was) undertook an exhaustive review of the authorities governing the admission of expert evidence, before making a number of observations (commencing at [85]) in which he set out the requirements of admissibility of an expert opinion pursuant to s 79 of the Act. His Honour observed that in order to be admissible, the opinion of an expert requires a demonstration of the scientific or other intellectual basis of the conclusions which have been reached. In other words, the expert must explain how it is that the field of specialised knowledge in which he or she has expertise applies to the facts, so as to produce the opinion which has been propounded.

16. Subsequently in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the plurality (French CJ, Gummow, Hayne, Kiefel and Bell JJ) confirmed (at [129]) the necessity for an expert to disclose his or her reasoning, or in other words, to disclose how he or she has used his or her expertise to reach the opinion which has been expressed. Their Honours went to some length to emphasise that the admissibility of expert opinion necessarily depends upon the reasoning process being exposed.

17. With those principles in mind, I then turn to the passages of the first of Dr Cameron's report which I have identified. 

18. In respect of the first passage of the first report, it was accepted by counsel for the plaintiff that no reasoning process was disclosed.  Having regard to the authorities to which I have referred, that must lead to the conclusion that those passages are inadmissible.  The question then becomes whether or not leave ought be granted to counsel for the plaintiff to call oral evidence from Dr Cameron.  That is a separate issue to which I will return.

19. In terms of the second passage of the first report, there was again an acceptance by counsel of a lack of exposition of the reasoning process by Dr Cameron.  That again must lead to the conclusion that the evidence is not admissible.

20. In terms of the second report, the first passage contains no expression of any opinion at all. Even if it did, its terms are so vague that they would lend themselves to exclusion pursuant to s. 135 of the Act.

21. In terms of the passage which relates to testing undertaken of the plaintiff, there are a number of difficulties. Firstly, the opening words of the passage make reference to a time period over which testing was apparently conducted. The precise period is not otherwise identified. Secondly, the report makes reference to "several measures" of the relevant testing questionnaire having been recorded. What is meant by the term "several measures" is not otherwise explained. Thirdly, to the extent that any opinion is expressed, it is expressed in terms of a person being in a position to “deduce” certain conclusions. Again, the terms in which that part of the opinion has been expressed are so vague they border on being meaningless. In all of those circumstances, it is my view that the passage ought be excluded pursuant to s. 135. That is not to say, of course, that if the actual results of the testing were adduced in evidence that they too would be inadmissible. That question would have to be determined according to the terms of the results of any testing which were tendered.

22. That then leaves the final two paragraphs of the second report.  Those paragraphs also have a number of difficulties.  Firstly, no reasoning process is exposed in either of them.  Secondly, there is a reference to "negative aspects" of the plaintiff's mental health which are not otherwise identified.  Thirdly, there is a reference to “mental health issues” being "ongoing", without such issues having been identified.  Finally, there is a reference to the plaintiff's cognitive function, in circumstances where there is no definitive expression of opinion as to the level of cognitive function at the time of examination.

23. In all of those circumstances, neither of these passages are admissible. Even if they were, they would similarly lend themselves to exclusion under s. 135.

24. I should also stay that I am not prepared to accept the proposition advanced by the plaintiff that a degree of latitude should be allowed in determining the admissibility of this evidence, on account of the language in which the reports are written. Counsel for the plaintiff, in putting that submission, expressly disavowed any suggestion that the admission of the evidence should be determined otherwise than in accordance with s. 79. However, contrary to what was submitted, there is no “practice” of this Court to give the latitude which has been suggested. The shortcomings of each report are so great that they fail the test of admissibility on a number of fundamental levels.

25. That then leaves me to consider whether, in all of the circumstances, counsel for the plaintiff ought be granted leave to call oral evidence from Dr Cameron.  That question is governed by the provisions of r. 31.28.  In dealing with this issue, it is appropriate for me to make a number of general observations before dealing with the specific circumstances of the present case.

26. Firstly, r. 31.28 is set out in that part of the rules which makes provision for expert reports and expert evidence.  The rules require, amongst other things, the service of reports prior to trial.  The rules expressly contemplate that the evidence‑in‑chief of an expert witness will be by way of a written report.  The scheme established by the rules in relation to expert evidence is directed to the efficient running of trials.  The scheme imposes, in particular, an obligation on the legal representatives of all parties to ensure, well in advance of any trial, that any report which is sought to be relied upon is prepared in an admissible form.

27. Counsel for the plaintiff relied on r. 31.28(3)(c) in support of his application to call oral evidence from Dr Cameron.  He submitted that the substance of the matters in respect of which he sought to adduce oral evidence was already contained in the reports.  I am unable to accept that proposition in circumstances where, to a large extent, what is sought to do is to elicit evidence of the reasoning process which Dr Cameron adopted and which resulted in him expressing the opinions that he sought to express.

28. However, even if I were to accept counsel’s submission, r 31.28(4)(a) makes it clear that leave to call oral evidence is not to be granted unless I am satisfied that there are exceptional circumstances warranting that course.  What is “exceptional” for these purposes is not defined. However, exceptional circumstances, as a general proposition, encompass those that are unusual, or not normally encountered.

29. It is important to assess what is “exceptional” against the background of the rules, and having a regard to a proper understanding of their underlying rationale: R v Buckland [2000] 1 WLR 1262 at 1268. I have already made reference to the general scheme which is established by the Rules as they relate to expert evidence. The scheme contemplates that such evidence will be, in effect, exchanged by both parties a long time prior to a trial, so that trials can be conducted both efficiently and fairly.

30. The application to call oral from Dr Cameron stems largely from the fundamental inadmissibility of his written reports.  What counsel for the plaintiff really seeks to do by calling Dr Cameron is to cure a series of evidentiary defects, the existence of which must have been plain at the time the reports were prepared.  In that regard, it is significant that the first report was prepared over six years ago, and the second over three years ago.

31. It is also relevant that in seeking to call oral evidence from Dr Cameron, counsel does not simply intend to supplement what is in the reports.  In respect of some of the identified passages, counsel for the plaintiff in fact seeks to elicit evidence of the very reasoning process which Dr Cameron apparently adopted.  Inherent in that position is an acknowledgment that the reports are bereft of any exposition of such process.  In those circumstances, a defendant is placed at a significant disadvantage in being required to meet the essence of an expert opinion of which it has not had any previous notice. True it is that the defendant has had the reports in its possession for some time. However, the defendant is obviously not aware of matters which are not contained in the reports. If oral evidence were allowed to be called, the defendant would be placed in a position where it was required to meet such evidence without having advance notice of it. 

32. The fundamental deficiencies in the two reports of Dr Cameron should have been evident a long time ago.  Such circumstances should not be regarded as “exceptional” within the meaning of r. 31.28.  If those circumstances were regarded as exceptional, it would mean that on every single occasion where reports were not prepared in an admissible form, resort could be had to the provisions of r. 31.28 to remedy fundamental evidentiary shortcomings.  The rule is reserved to address circumstances which are truly exceptional. In my view, the present circumstances do not fall into that category.

33. Fundamental to a consideration of the exercise of the discretion to allow oral evidence is to ensure that the proceedings are determined justly and fairly to the parties. 

34. In all of the circumstances, it is my view that the defendant should not be forced to deal with evidence of matters of opinion of which it has had little or no prior notice.

14. Accordingly, for those reasons, the tender of those parts of Dr Cameron's two reports to which objection was taken is rejected and the application for leave to call oral evidence from Dr Cameron is refused.

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Amendments

27 September 2016 - Correction to cover sheet

Decision last updated: 27 September 2016