The plaintiff brings an application under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) that a medico-legal report of Dr Bentivoglio dated 2 May 2018 be admitted notwithstanding that it was not served in compliance with the rules.
The application is brought against the background that day 2 has almost been completed of a trial that had been given a two day estimate. The trial commenced on 8 April 2020 after an unsuccessful application to vacate the hearing. The trial has been conducted in the Virtual Courtroom setting resultant from the Covid-19 pandemic; with all witnesses giving their evidence (and Counsel participating) by audio-visual link.
The nature of the proceeding is, simply speaking, that the plaintiff brings a claim against the defendant, his former wife or partner, for damages for personal injury occasioned by his falling down stairs which he says was caused by a push from the defendant whilst they were upstairs at the defendant's home.
[2]
PROCEDURAL BACKGROUND
The proceeding commenced on 31 May 2019.
I was informed that on 15 November 2019, a direction was made by the Court for the parties to serve their expert evidence.
During Counsel for the plaintiff's brief opening address, I inquired whether or what medical reports were purported to be relied upon. Counsel indicated that the medical evidence which the plaintiff intended to rely upon was annexed to his Statement of Particulars (dated 31 May 2019). That evidence contained some records of St Vincent's Hospital, radiology reports and a psychologist's notes. There was nothing that post-dated 2016. Another Statement of Particulars was filed in October 2019, but no evidence was annexed to that statement.
Counsel for the defendant, during his opening address that immediately followed that of Counsel for the plaintiff, emphasised that there was no medical evidence after 2016.
Prior to the commencement of the second day of the trial (9 April 2020), the report of Dr Bentivoglio was sent, by email, to my Associate. I am informed it was supplied to Counsel for the defendant shortly after 10:00am. This was, so Counsel informed me, the first time he had seen the report. The report was supplied at a time when the plaintiff was under cross-examination.
The issue of late service of the report surfaced at a point when the plaintiff was under cross-examination. Counsel for the defendant indicated that subject to dealing with matters raised by what was contained in Dr Bentivoglio's report, he had completed much of that cross-examination. It thus became imperative to deal with the question of whether that report should be admitted.
[3]
THE PLAINTIFF'S APPLICATION
Given the exigencies of time and the circumstances in which this application was brought, I was prepared to allow the plaintiff to rely upon a short written email (unsworn as to its correctness) from the plaintiff's solicitor to his Counsel dated 9 April 2020 (Exhibit 1 on the application). Privilege over that communication was self-evidently waived. The content of the email comprised much hearsay but that was no automatic impediment to its reception for an interlocutory application. I note that the defendant's Counsel did not have the opportunity to cross-examine the solicitor on its content.
The gist of the email was that the report was commissioned by the solicitor on 2 May 2018. This is surprising given that the final report bore that date. The medical practice (Assess Medical Group) rendered a bill which the plaintiff could not pay. Neither could the solicitor. The medical practice indicated that it would not release the report until payment was made or an undertaking was provided, in deed form, for deferred payment.
For reasons not explained, the solicitor somehow obtained the report and gave an undertaking that it would not be used until the deed was given. That was only supplied by the medical practice in January 2019.
The solicitor did not advert to the need to serve it, as would have been his customary practice as if he had received the report straight away in the usual course.
On 10 October 2019, the plaintiff's solicitor sent a letter to the defendant's solicitor indicating that it did not intend to commission any further medical reports. The solicitor suggests that this brought to the defendant's notice the circumstance that a medical report did in fact exist and that it already had been served.
[4]
SUBMISSIONS
The plaintiff brings the application under r 31.28(4). Counsel tentatively invoked r 31.28(4)(b), but plainly that provision cannot apply in circumstances where what he seeks to tender is the original report of Dr Bentivoglio.
Counsel for the plaintiff referred me to the Court of Appeal's decision in Yacoub v Pilkington [2007] NSWCA 290 where Campbell JA (with the agreement of Tobias JA and Handley AJA) said (in relation to an earlier version of the rule), at [66]-[67] (citations omitted):
[66] Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered...
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors...
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional…
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision...
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case...
[67] In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005."
The plaintiff's Counsel submitted that the circumstances here - that the issuer of the report required payment and conditionally offered to release the report upon an enforceable undertaking and that the solicitor inadvertently forgot to serve the report once condition was fulfilled - fell within the concept of 'exceptional circumstances'.
Counsel accepted that r 31.28(4)(a) provided only one of two gateways to allowing admission of the report, but it still remained for the plaintiff to persuade the Court that it should exercise its discretionary power under that provision in the plaintiff's favour, having regard to the usual case management objects referred to in ss 56-60 of the Civil Procedure Act 2005 (NSW).
He submitted that I should exercise my power in this way. He characterised Dr Bentivoglio's report as a conglomeration of accumulation of earlier medical evidence (which was annexed to the Statement of Particulars). He submitted that there could, accordingly, be no prejudice to the defendant and there was no need, in particular, for the defendant's Counsel to wish to cross-examine Dr Bentivoglio.
[5]
DETERMINATION
I do not consider that it is necessary to decide whether a medico-legal practice's stipulation of requiring payment before releasing a report, by itself, falls within the concept of 'exceptional circumstances'. Nor is it necessary to decide whether a solicitor's inadvertence, alone, might merit that description. What is apparent is that even if I was to accept that the plaintiff's solicitor was inadvertent in failing to serve the report in January 2019 when he received the deed, the determinative circumstance is that, by November 2019, the plaintiff had not complied with the Court direction to serve its medical evidence. No explanation has been supplied to the Court as to why compliance with that direction would not reasonably have triggered in the mind of the plaintiff's solicitor a need to check whether in fact the report had been served.
I note also that the earlier medical evidence which the plaintiff relies upon was served with the Statement of Particulars on 31 May 2019. No explanation was supplied as to why Dr Bentivoglio's report could not have been served with it.
I do not consider, in this regard, that the content of the October 2019 communication gave notice of the plaintiff's intention to rely upon Dr Bentivoglio's report. To my mind, at most, it conveyed only an intention to rely upon medical evidence that had been served with the Statement of Particulars on 31 May 2019. Dr Bentivoglio's report was not included within that material.
I am not satisfied that exceptional circumstances are established.
If I am wrong, I would not have been inclined to exercise my discretion to allow the late admission of this report. To my mind, it goes substantially beyond the mere conglomeration of accumulation of other medical reports. If that was its sole purpose, then arguably it would not be necessary to rely upon it.
The content of the report suggests that although Dr Bentivoglio referred to the prior history, including earlier evidence, he conducted a full examination a substantial period of time after 2016 and he provided a diagnosis and prognosis. Further, he gave evidence responsive to a range of questions that concern the plaintiff's claims for past and future loss of income and past and future domestic assistance.
It is now too late to admit the report. Cross-examination of the plaintiff has virtually concluded, but would need to be re-opened. More significantly, if this report was to be admitted, inevitably, the defendant would be prejudiced by being deprived of the opportunity to produce a report in response to Dr Bentivoglio. I am informed by the defendant's counsel, and it appears plausible that in the current circumstances, it could take months before such report could be procured. That would necessitate an adjournment.
Further, I am informed that the reason for the delay in service of the report in the first place was that neither the plaintiff nor his solicitor could afford to pay for it. In other words, the prejudice to the defendant could not be cured by an adjournment allowed on terms that the plaintiff pay the costs thrown away.
Recognising the importance of the plaintiff receiving a fair trial, in my view, it is not in the interests of justice for the report to be admitted, with the consequences it would bring.
The application under r 31.28(4)(a) is declined.
[6]
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Decision last updated: 20 April 2020