Yani Pappas v Victor Noble - [2006] ACTSC 39

YANI PAPPAS v VICTOR NOBLE [2006] ACTSC 39 (27 April 2006)

EX TEMPORE JUDGMENT

EVIDENCE – admissibility – assessment of damages for personal injury – clinical notes of treating medical practitioner – whether rendered inadmissible by Territory statute – whether Territory statute inconsistent with Commonwealth Act – Territory statute held ineffective to extent of inconsistency – notes admissible.
CIVIL AND POLITICAL RIGHTS – human rights – right to fair hearing – whether statutory provision rendering relevant evidence inadmissible compatible with right to fair hearing.
STATUTES – interpretation – Australian Capital Territory – whether provision of Territory statute inconsistent with Commonwealth Act – admissibility of evidence in personal injury action.

Civil Law (Wrongs) Act 2002, ss 82, 84
Evidence Act 1995 (Cth), ss 4, 56
Australian Capital Territory (Self-Government) Act 1988 (Cth), s28
Human Rights Act 2004, ss21, 30

No. SC 148 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 27 April 2006

IN THE SUPREME COURT OF THE )
) No. SC 148 of 2004
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:YANI PAPPAS
Plaintiff

AND:VICTOR NOBLE
Defendant

ORDER

Judge:  Master Harper
Date:  27 April 2006
Place:  Canberra

THE COURT ORDERS THAT:

The clinical notes of the plaintiff’s general practitioner be admitted into evidence.

In this action for damages for personal injury counsel for the plaintiff tenders a copy of the notes of the plaintiff’s treating general practitioner. I have not read through them or looked at them in any detail, but it is common ground that although they may largely consist of recording of factual matters, inevitably they will contain some expressions of opinion by the general practitioner.
In the circumstances counsel for the defendant formally objects to the tender by reason of section 84 of the Civil Law (Wrongs) Act 2002. That section is in the following terms:
Limitation on expert medical evidence.
Expert medical evidence may be given in a proceeding in a court based on a claim only by -
(a) an expert appointed by the parties under section 85 or section 89(1) (an agreed expert); or
(b) an expert appointed by the court under section 86 or section 89(2) (an appointed expert).

A claim is defined to mean a claim, however described, for damages based on a liability for personal injury. Evidence is defined to mean evidence given orally or in writing. Expert medical evidence is defined to mean opinion evidence on a medical issue given by an expert in relation to the issue.
Medical issue is defined as an issue which relates to (a) the medical condition or prospects of rehabilitation of a person or (b) the cognitive, functional or vocational capacity of a person. Those definitions are found in section 82 of the Act: I have paraphrased them by deleting portions which are not relevant to an action of the present kind.
The provisions are contained in Chapter 6 of the Civil Law (Wrongs) Act which establishes a regime, the intention of which appears to be…

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.

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Details

Case: [2006] ACTSC 39
Decision Date: 27 April 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Yani Pappas versus Victor Noble was heard and determined. The plaintiff, Yani Pappas, sought damages for personal injury sustained in an incident, while the defendant, Victor Noble, was the party being sued. The dispute centred around the admissibility of evidence, specifically clinical notes from the plaintiff's treating general practitioner. The defendant objected to the admissibility of these notes, citing section 84 of the Civil Law (Wrongs) Act 2002, which restricts expert medical evidence in proceedings to certain categories of experts. The court was required to determine whether this statutory provision rendered the tendered evidence inadmissible and whether such a provision was compatible with the right to a fair hearing.

The court considered whether section 84 of the Civil Law (Wrongs) Act 2002 was consistent with the Evidence Act 1995, which generally permits the admission of relevant evidence. The court had to assess if the statutory provision was inconsistent with the Commonwealth Act and, if so, whether the Territory statute could be rendered ineffective to the extent of the inconsistency. The compatibility of the statutory provision with the right to a fair hearing under the human rights framework was also a key issue. The court concluded that the statutory provision was indeed inconsistent with the Evidence Act 1995 and, therefore, the clinical notes were admissible as evidence in the proceeding.

In reaching its decision, the court found that the provision in the Civil Law (Wrongs) Act 2002 was ineffective to the extent of its inconsistency with the Evidence Act 1995. This meant that the clinical notes of the plaintiff’s general practitioner were admissible despite containing some expressions of opinion. The court reasoned that the restriction on expert medical evidence did not align with the overarching principle of the Evidence Act, which permits the admission of relevant evidence. The right to a fair hearing was upheld by the court's determination that the evidence could be considered in the proceedings.

The court ordered that the clinical notes of the plaintiff’s treating general practitioner be admitted as evidence in the proceeding. This ruling allowed the plaintiff to present all relevant evidence in support of the claim for damages for personal injury.

Orders

Orders of the court

In this action for damages for personal injury counsel for the plaintiff tenders a copy of the notes of the plaintiff’s treating general practitioner. I have not read through them or looked at them in any detail, but it is common ground that although they may largely consist of recording of factual matters, inevitably they will contain some expressions of opinion by the general practitioner.

In the circumstances counsel for the defendant formally objects to the tender by reason of section 84 of the Civil Law (Wrongs) Act 2002. That section is in the following terms:

Limitation on expert medical evidence.

Expert medical evidence may be given in a proceeding in a court based on a claim only by -

(a) an expert appointed by the parties under section 85 or section 89(1) (an agreed expert); or

(b) an expert appointed by the court under section 86 or section 89(2) (an appointed expert).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In relation to admissibility of evidence, the Evidence Act 1995 provides in section 56 as follows:Relevant Evidence to be Admissible(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. There is no suggestion that any opinions expressed by the general practitioner in the tendered notes would be irrelevant to the issues to be determined in the action, and I take it to be conceded on both sides that such evidence is relevant and would be admissible were it not for section 84 of the Civil Law (Wrongs) Act.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.