Emery v Coal Mines Insurance Pty Limited

STATUTORY PROVISIONS AND GENERAL PRINCIPLES

1. It is appropriate to commence by setting out a number of provisions of the Evidence Act 1995 (NSW) (the Act) which bear upon the resolution of the present issues.
2. To begin with, s 76 states the opinion rule which is in the following terms: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
3. Section 79 of the Act creates an exception to the opinion rule in respect of opinions based on specialised knowledge and 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.
4. Section 80 of the Act is in the following terms: 80 Ultimate issue and common knowledge rules abolished Evidence of an opinion is not inadmissible only because it is about-- (a) a fact in issue or an ultimate issue, or (b) a matter of common knowledge.
5. Finally, s 135 of the Act is in the following terms: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
6. In Dasreef Pty Limited v Hawchar [1] the High Court formulated a number of principles governing the admissibility of expert evidence pursuant to s 79, including the following: 1. in order to be admissible, expert evidence must obviously be relevant, which requires identification of the fact in issue that the party tendering the evidence asserts that the opinion proves, or assists in proving; [2] 2. the expert who gives the evidence must have specialised knowledge based on that person's training, study or experience; [3] 3. the evidence given by the expert must be wholly or substantially based on that knowledge; [4] 4. the expert must explain how the field of specialised knowledge in which he or she is an expert by reason of training, study or experience, and on which his or her opinion is wholly or substantially based, applies to the facts assumed or observed, so as to produce the opinion propounded; and [5] 5. the factual basis of the opinion must be made clear, although it is not necessary for that basis to be established or proved. [6]
7. In light of some of the objections taken in the present case, it is necessary to emphasise the necessity for the expert to explain how his or her field of specialised knowledge applies to the facts, so as to produce the opinion. There must be an exposition, by the expert, of the reasoning process which has been adopted. In other words, the expert must explain how it is that the relevant opinion was formed. Courts cannot be expected to act on opinions, the basis of which is unexplained. [7]
8. Any expert report should be in a form that is conducive to readily apparent satisfaction about compliance with the statutory provisions, and the principles set out above. [8] This requires that any report explain: 1. the field of specialised knowledge in which the witness is an expert, and on which the opinion is substantially based; 2. how the discipline applies to the relevant facts, be they facts assumed or observed; and 3. the reasoning process by which the specialised knowledge, when so applied, produced the opinion which is expressed. [9]
9. Finally, the truth of the assumptions upon which an expert opinion is based need not be established as a condition of admissibility at the time when the question of admissibility is being considered. The ultimate accuracy, and the evidentiary status, of facts addressed in the opinion are not preconditions to admissibility. [10] Whether the facts upon which an opinion is based are established as true is a question that goes to the weight to be attributed to the opinion which is expressed, and not to the issue of admissibility. [11]
10. With all of these principles in mind, I now address the individual objections.

THE REPORTS OF DR HOPCROFT

1. Dr Hopcroft, a general surgeon, examined the plaintiff for medico-legal purposes and furnished four reports, dated: 1. 15 November 2017; 2. 24 October 2018; 3. 5 November 2018; and 4. 19 June 2019.
2. It was agreed between the parties that the histories recorded by Dr Hopcroft in his various reports would be limited pursuant to s 136 of the Act as evidence of the history provided, as opposed to evidence of the facts asserted. [12]

The report of 15 November 2017

1. Objection was taken to the following passages of Dr Hopcroft's report of 15 November 2017: [13] The patient is going to require careful retraining into non physical type work into the future and should not restrict regular sensory contact with his hand which will only lead to further significant symptoms in the longer term. (It may be wise for him to consider the wearing of a leather glove with the digit ends removed so that he has fingertip sensation functioning every day while preventing the hyperaesthesia he has of his thumb and lateral border of wrist). As the patient was employed in office duties during the course of his injury intermittently, I believe he is fit for that type of sedentary work for about four hours a day, five days a week into the future until training can be undertaken for him where he would be more motivated, interested and capable of performing.
2. Senior counsel for the defendant submitted that the reasoning process adopted by Dr Hopcroft which led him to the view that the work capacity of the plaintiff was limited, had not been exposed.
3. Senior counsel for the plaintiff submitted that the reasoning process was evident when the report was read as a whole. Senior counsel also relied on the paragraphs preceding those which were the subject of the present objection, and which are in the following terms: [14] Diagnosis Opinion & Prognosis The patient suffered a serious rotational injury to his right wrist, wrenching but not completely avulsing the scapholunate ligament and he has undergone three surgical procedures prior to a wrist joint fusion as a direct result of that injury. The nature of the conditions found and the history given is consistent at this consultation. All treatment has been detailed. The patient has been left severely disabled as a result of his hand dysfunction and there is a direct relationship between the patient's work and the incident described.
4. In my view, the passages to which objection is taken are admissible. Reports of this kind are to be read as a whole and not in a piecemeal fashion. It is evident that Dr Hopcroft's opinions as to the plaintiff's capacity for work are underpinned and explained by his diagnosis.
5. The next objection was to the following further passage of the same report: [15] He has a permanent loss of efficient use of his right arm at and above the elbow to include below the elbow of 45%.
6. Senior counsel for the defendant submitted that this passage of the report amounted to nothing more than a "guesstimate", absent any accompanying explanation as to the basis upon which Dr Hopcroft arrived at that percentage of loss. It was submitted that Dr Hopcroft's expressed conclusion amounted to nothing more than an "ex cathedra" statement which was not the subject of any exposed reasoning.
7. Senior counsel for the plaintiff submitted that in the preceding paragraphs Dr Hopcroft had set out, in some detail, his findings on examination. [16] It was submitted that it was clear, when the report was read as a whole, that it was on the basis of those findings that Dr Hopcroft had determined the loss of efficient use that he had expressed.
8. In my view, the submission of senior counsel for the plaintiff should be accepted. It is self-evident that Dr Hopcroft's assessment of loss was based upon his findings on examination.
9. The next objection was to the following paragraphs of the same report: [17] I do not believe he has any permanent percentage impairment of his neck. He is compromised in all these activities of daily living including shaving, dressing, personal care, driving of a vehicle, toileting and suffers from major sleep disruption. This patient's prognosis must remain guarded for the ongoing and significant sensory symptoms that he suffers significantly compromise the success of his wrist fusion. He is not a candidate for any further surgery to his wrist or thumb.
10. Senior counsel for the defendant took particular objection to Dr Hopcroft's use of the word "compromise" and submitted that was unclear from the report whether the use of that term formed part of Dr Hopcroft's opinion, or whether it was something that the plaintiff had told him and therefore formed part of the history. Further, and in addition to submitting that there was an absence of exposition of any underlying reasoning process, senior counsel for the defendant submitted that the use of the word "compromise" attracted the provisions of s 135(b) of the Act and these particular passages should be excised from the report on the basis that their probative value was substantially outweighed by the danger that they might be misleading or confusing.
11. Senior counsel for the plaintiff submitted that there was nothing confusing about the use of the word "compromise" and that this became clear when the relevant letter of instructions was considered.
12. In my view, there is nothing misleading or confusing about these passages. The word "compromise" is an ordinary English word which should be given its ordinary English meaning. The meaning adopted by Dr Hopcroft in arriving at his conclusions is to be drawn from the preceding paragraphs of the report.

The report of 24 October 2018

1. The first objection taken was to the following passage: [18] He has also noticed, from the time of the injury, gradually increasing right sided neck pain with restriction in movement, and that has now become a very significant feature of his symptom complex, with pain radiating onto the back of his head with restricted movement, and a combination of symptoms is severely disrupting his sleep pattern. [Emphasis added].
2. Objection was also taken to the expression of opinion regarding the plaintiff's injury to his cervical spine: [19] On examination he is in obvious distress with right-sided neck pain, but demonstrates a fairly full range of movement of his cervical spine in flexion, extension, right and left lateral bending, and right and left lateral rotation. He also has a full range of movement of both shoulders and elbows, but has fusion of the right wrist as previously documented with the associated scarring from multiple surgeries. While he complains of intermittent swelling and sweating of his right hand, the features of chronic regional pain syndrome (reflex sympathetic dystrophy) are not the major manifestation of his hand and I am now of the opinion that this patient has, in addition to his right wrist problem and consequent surgeries, a significant problem with his cervical spine, almost certainly a cervical disc protrusion. [Emphasis added].
3. Senior counsel for the defendant also objected to a further passage in the following terms: [20] It is for that reason that I believe it is mandatory for him to proceed to MRI scanning of his cervical spine and, as he has significant pain around the base of his right thumb in the presence of a sound wrist fusion, an isotope uptake scan to see if any focused intercarpal or carpometacarpal joint problem could be relieved to a significant degree by occasional steroid and local anaesthetic injections.
4. Senior counsel for the defendant submitted that the conclusion of Dr Hopcroft as to the difficulties with the plaintiff's cervical spine was "quite irrational", and that such conclusion was not accompanied by any explanation of why it was that he had reached it. Senior counsel also took particular issue with the fact that Dr Hopcroft had referred the plaintiff for an MRI scan in circumstances where he had examined the plaintiff for medico legal purposes.
5. Senior counsel for the plaintiff submitted that the basis of these particular opinions were to be found in the paragraphs which preceded them. It was submitted that the fact that Dr Hopcroft had referred the plaintiff for further investigations was not inconsistent with the Expert Code of Conduct and that the form of the report was conventional.
6. Again, reading the report as a whole, Dr Hopcroft's reasoning processes is in my view sufficiently exposed. To the extent that there may be some "cross over" between his opinions and the history with which he was provided, the latter will be admitted as evidence of the fact.
7. Further in my view, there is nothing objectionable about the fact that Dr Hopcroft recommended referral for an MRI scan based on the history with which he had been provided. It was open to him to recommend that course if he thought it appropriate. In my view, there is nothing in the Expert Code of Conduct which prohibits that course. Moreover in my view, the fact that Dr Hopcroft made that recommendation does not render his opinion inadmissible, nor does it provide a basis for its discretionary exclusion.

The report of 19 June 2019

1. The first of the passages to which objection was taken in this report is in the following terms: [21] Following that consultation he underwent an MRI scan of his cervical spine which contributed significantly in the understanding of the complex symptomatology he has in his right upper limb. Not only has he had three major operations on his wrist, including ultimate fusion of the right wrist joint, and the development of chronic regional pain syndrome, he has had paraesthesia and numbness in his arm with pain, restricted movement and crepitation in his neck, all of which I believe confirm that his primary injury during the course of his work on 24 November 2013 was not only an injury to his right wrist but also a traction injury to his arm, which aggravated a pre-existent cervical spondylitic condition.
2. Subsequently, Dr Hopcroft said the following to which objection is also taken: [22] He has the scarring around his right wrist as previously noted, but the changes of reflex sympathetic dystrophy (chronic regional pain syndrome) are slowly resolving, although he has pain to palpation around the wrist joint proper, and a marked weakness of grasp in his right hand. [Emphasis added].
3. Finally, objection was also taken to the following further passages of the report: [23] He remains totally unfit to contemplate a return to the workforce in any form as he is right hand dominant, and by way of his education, training and experience it would be difficult for any rehabilitation officer to place him in the workforce, taking into account his dependency now on medications. … He struggles with many activities of daily living including shaving, dressing, nail clipping and is compromised in driving, relying on his wife significantly. He has trouble with toileting, an interrupted sleep pattern, and is unable to use vibrating equipment such as mowers and whipper snippers, and once again is dependent on his wife for those activities. I believe he has a permanent percentage impairment in his neck of 30%. I believe he has a permanent loss of efficient use of the right arm at or above the elbow to include below the elbow of 45%.
4. Senior counsel for the defendant submitted that the various references to chronic regional pain syndrome were inadmissible. It was submitted that Dr Hopcroft had not identified when the development of that syndrome had occurred.
5. Senior counsel for the plaintiff submitted that the objections taken essentially went to matters of weight rather than admissibility, and were matters which were properly dealt with by way of submission at the conclusion of the evidence.
6. In terms of the first paragraph to which objection was taken, much of that paragraph appears to me to recount matters of history and should be limited accordingly. However, Dr Hopcroft's diagnosis of the development of a chronic regional pain syndrome is largely unexplained and for that reason, that part of his opinion should be excluded.
7. In my view, Dr Hopcroft's opinions as to the plaintiff's fitness for work are admissible. His reference to the plaintiff's difficulties in undertaking activities of daily living form part of the history provided and will be limited accordingly.

THE REPORTS OF DR DINNEN

1. Dr Dinnen, a Consultant Psychiatrist, examined the plaintiff or medico-legal purposes and furnished three reports dated: 1. 16 November 2017; 2. 1 November 2018; 3. 24 July 2019.

The report of 16 November 2017

1. It was agreed between the parties that the history recorded by Dr Dinnen in his various reports would be limited, pursuant to s 136 of the Act, as evidence of the history provided, as opposed to evidence of the facts asserted. [24]

The report of 16 November 2017

1. In expressing his opinion, Dr Dinnen said the following: [25] The patient's history was consistent with my findings. He is a genuine witness if somewhat inclined to be stoic and to minimise his problems.
2. Objection was taken by senior counsel for the defendant to the italicised portion of that paragraph on the basis that the opinion expressed fell outside Dr Dinnen's expertise. In the event that I found that the evidence was admissible it was submitted that it should be excluded pursuant to s 135(a) and/or (b) of the Act on the basis that it was unfairly prejudicial, or was misleading or confusing.
3. Senior counsel for the plaintiff pressed this part of Dr Dinnen's opinion and submitted that it was within his expertise as a psychiatrist to express such a view. Senior counsel submitted that as someone who dealt with people who made varying complaints, it was within the expertise of Dr Dinnen to express an opinion as to whether or not what was said by the plaintiff was accurate.
4. In my view, this portion of the report should be excluded for a number of reasons. To begin with, it is not clear, bearing in mind the purpose for which Dr Dinnen examined the plaintiff, what he means by the term "genuine witness". Whether the plaintiff falls within that description is a matter for the Court, not a medical practitioner. That aside, the basis upon which Dr Dinnen has expressed that view has not been explained, in circumstances where he examined the plaintiff over what was obviously a limited period of time for medico-legal purposes.
5. Dr Dinnen expressed the following opinion in the same report: [26] I believe the patient is suffering from ongoing adjustment disorder with anxiety and depressed mood which is a secondary response to the initial work injury to the right wrist which has resulted in loss of function and chronic pain.
6. Senior counsel for the defendant submitted that this passage amounted to no more than Dr Dinnen stating a belief, based upon the history that he took, and his review of clinical notes of Karen Hancock, Psychologist. As I understood it, senior counsel submitted that Dr Dinnen's reasoning process was not properly disclosed.
7. Senior counsel for the plaintiff submitted that it was evident from a reading of the entirety of the report that Dr Dinnen based his opinion on the history that he had been given, and the impression that he formed of the plaintiff when he interviewed him.
8. In my view, this part of Dr Dinnen's report should be excluded. Dr Dinnen has simply recorded the history that he was given, reviewed the plaintiff's treatment by Ms Hancock, and expressed the view that the plaintiff is suffering from an ongoing adjustment disorder with anxiety and depressed mood. He has not explained why he reached that conclusion, or what aspects of the plaintiff's history caused him to do so.

The report of 1 November 2018

1. The report of Dr Dinnen of 1 November 2018 [27] followed his examination of the plaintiff on 25 October 2018. The general format of that report was the same as that of the report of 16 November 2017, in the sense that Dr Dinnen recorded the contents of his interview with the plaintiff, his interview with the plaintiff's wife and a review of relevant documentation, before expressing the following opinion: [28] When I saw the patient a year ago I considered he was suffering from an adjustment disorder with anxiety and depressed mood consequent to the physical injury to the right hand. Those findings are confirmed at this consultation. The plaintiff continues to have symptoms of anxiety and depression as described above.
2. Senior counsel for the defendant again took objection to that opinion on the basis that the reasoning which supported it had not been exposed. Senior counsel submitted that the report amounted to nothing more than the recording of a history followed by an expression of opinion, without any attempt by Dr Dinnen to explain what aspects of that history led him to form the opinions expressed.
3. Senior counsel for the plaintiff submitted that when the report was read in its entirety the basis of Dr Dinnen's opinion became clear. It was further submitted that this report supported the admissibility of the opinion expressed by Dr Dinnen in his earlier report.
4. In my view this report, like the first, is essentially bereft of the exposition of any reasoning process to support the opinion which has been expressed. What the report does is record a history and express an opinion without explaining what it was about that history (or about any other factor) which caused the opinion to be formed.
5. For these reasons, Dr Dinnen's opinion will be excluded.

The report of 24 July 2019

1. Dr Dinnen examined the plaintiff again on 3 June 2019 and provided a further report of 24 July 2009. [29] In the course of documenting the history that he took, Dr Dinnen and said: [30] Symptoms are unchanged. He is tearful and he gets feelings of hopelessness and helplessness. He gets a bit cranky with the children. He does not bother to answer the phone, that is if it is still charged, which he does not bother with.
2. In terms of his opinion, Dr Dinnen said: [31] The patient continues to suffer from an adjustment disorder with anxiety and depressed mood. His account has been consistent throughout the past eighteen months, throughout these three consultations. … It is my opinion that he is totally incapacitated for any employment for which he was qualified and trained.
3. Senior counsel for the defendant submitted that in a general sense, this report suffered from the same vice(s) as those in the reports which preceded it and was similarly lacking in the exposition of any reasoning process.
4. Senior counsel for the plaintiff relied upon the documented history and submitted that when the report was read as a whole, the reasoning process which led Dr Dinnen to form his opinion was to be drawn from at that history.
5. In my view, for the reasons I have already given, when addressing Dr Dinnen's previous reports, the opinion expressed by Dr Dinnen in this report must meet with the same fate. Fundamentally, Dr Dinnen has failed to explain what aspect(s) of the history that he took, or what other factors, led him to form the opinion that he expressed. The absence of any reasoning process renders the opinion inadmissible.

The report of Suzanne Miller Ravagnani

1. Suzanne Miller Ravagnani, an Occupational Therapist, provided a report of 31 March 2017. [32] In the course of that report, [33] Ms Ravagnani stated the following: This assessment is based on the history obtained and medical reports provided as well my clinical experience and assessment of the client. I do not rely on commercially available functional assessment tools which are subjective assessments of behaviour providing only a contrived snapshot of the client's capabilities. I find that the combination of in-depth interview and observation permits cross-referencing of reported dysfunction and demonstrated behaviour, allowing a more accurate estimation of the client's true level of function.
2. Senior counsel for the defendant objected to the admissibility of the report on the basis of an absence of any reasoning process. He submitted, in effect, that the report contained a history, and adoption of the history, followed by the expression of an opinion about the plaintiff's requirements.
3. Senior counsel for the plaintiff submitted that the factors which supported the opinion which had been expressed were to be found in the recitation of the history and background information which appears in the report.
4. The form of Ms Ravagnani's report sets out: 1. the content of Ms Ravagnani's interview with the plaintiff and his wife; 2. a history of at the accident; 3. a review of medical reports; 4. a notation of reported symptoms.
5. Following the recitation of those matters, various opinions are expressed by Ms Ravagnani as to the plaintiff's ongoing needs. There is, in my view, a complete failure on the part of Ms Ravagnani to explain why it is that she came to the view that the assistance that she has identified is required. For example, in terms of the plaintiff's ongoing domestic needs and attendant care, Ms Ravagnani stated: [34] Based on my visit to Mr Emery's home, his reported difficulties and my understanding of the functional ramifications of this type of injury I believe that he requires the following assistance:
6. Ms Ravagnani has not stated (for example) what it was about the visit to the plaintiff's home which caused her to form that view. There is also no explanation of her understanding of the nature and extent of the functional ramifications of the plaintiff's injury, and why those ramifications justify the level of care and assistance which has been recommended.
7. For these reasons, the opinion of Ms Ravagnani should be excluded.

The report of 15 July 2019

1. Ms Ravagnani provided a second report dated 15 July 2019 following a review "by telephone" on 12 June 2019 with the plaintiff and his wife. [35]
2. In the course of her report, Ms Ravagnani said: [36] Mr Emery is currently assisted by his wife and older children. It is neither reasonable nor realistic to assume that this level of gratuitous care will be available indefinitely. My estimates for his personal care and domestic needs (including childcare) reflect this point.
3. For the reasons previously expressed when dealing with the earlier report, the opinions of Ms Ravagnani contained in this report should be excluded.

THE CONCLAVE REPORTS

1. There are a series of joint reports which have been prepared by the experts. Senior counsel for the defendant has taken various objections to those reports but has submitted that all of those objections should be deferred until such time as the experts have given evidence and have been cross-examined. The nature and extent of the objections which have been taken are such that in my view, that is an appropriate course. In those circumstances this issue will be addressed in the judgment which is delivered at the conclusion of the proceedings.

Endnotes

1. (2011) 243 CLR 588; [2011] HCA 21.
2. At [31] There is no suggestion in the present case that the evidence is not relevant.
3. At [32].
4. At [32].
5. At [37]; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at 743-744 per Heydon JA (as his Honour then was).
6. At [41]; [77]; [96].
7. R v Jenkins; ex parte Morrison [1949] VLR 277 at 303 per Fullagar J.
8. HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [39].
9. Kyluk Pty Limited v Chief Executive Officer, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 at [176].
10. Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; [2005] NSWCA 152; Dasreef at [41]; Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198 at [21]-[23].
11. Taub at [30]; Kyluk at [176]-[177].
12. T357.2-T357.30.
13. CB 261.
14. CB 261.
15. CB 261.
16. CB 260.
17. CB 261.
18. CB 286. The objection is to the italicised portion of the passage
19. CB 287. The objection is to the italicised portion of the passage.
20. CB 287.
21. CB 293.
22. CB 294. The objection is to the italicised portion of the passage
23. CB 294-295.
24. T383.3 - T383.35.
25. CB313.
26. CB 312.
27. CB 314.
28. CB 316.
29. CB 318.
30. CB 319.
31. CB 320.
32. CB 340.
33. CB 340.
34. CB 351.
35. CB 363.
36. CB 365. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020