Wadsworth v Hamilton

Dr Bowers' Report

In March 2021, the plaintiff's solicitor arranged for Dr David Bowers, who was at that time a rehabilitation physician, to examine the plaintiff and provide a report. Dr Bowers saw the plaintiff on 9 April 2021 and completed a report dated 12 April 2021. An invoice for Dr Bowers' services accompanied the report and was in the amount of $14,652.00.
On 10 June 2021, the plaintiff served a copy of Dr Bowers' report on the first defendant and on 28 June 2021 a copy was served on the second defendant. It is not necessary for the purpose of this evidentiary ruling to summarise Dr Bowers' report. He was an expert in the field of rehabilitation and his expert report addresses the plaintiff's rehabilitation needs resulting from his allegedly negligent treatment by the defendants.
On 2 July 2021, the defendants were ordered to serve their expert evidence by 30 October and the matter was listed for further directions on 1 October 2021.
On or around 12 July 2021, Mr Tannous became aware than Dr Bowers had died on 4 July 2021. Mr Tannous had not been aware that Dr Bowers' passing was imminent in any way. At around the same time, Ms Beyers also became aware that Dr Bowers had died.
On 28 July 2021, Ms Beyers caused a letter to be sent to Mr Tannous querying whether the plaintiff intended to retain another rehabilitation expert and reserving the second defendant's rights to object to the report of Dr Bowers due to his unavailability for cross-examination.
On 6 August 2021, Mr Tannous responded to Ms Beyers to the effect that the plaintiff did intend to adduce Dr Bowers' report into evidence, and that the plaintiff reserved his right to adduce further supplementary evidence from another expert of the same of similar expertise, if reasonably necessary. It was asserted that the plaintiff would press for the admission into evidence of Dr Bowers' report relying upon ss 63 and/or 69 of the Evidence Act.
On 9 September 2021, Ms Beyers wrote to Mr Tannous and invited the plaintiff to withdraw his reliance on the report of Dr Bowers, relying on, inter alia, s 135 of the Evidence Act.
On 27 September 2021, Mr Tannous wrote to Ms Beyers confirming that the plaintiff would continue to press for the report of Dr Bowers to be admitted into evidence.
On 30 September 2021, Ms Beyers wrote to Mr Tannous maintaining the second defendant's objection to the report of Dr Bowers, and opposing any second, further, expert rehabilitation evidence the plaintiff might adduce. Ms Beyers also queried whether such evidence would be forthcoming.
On 3 November 2021, Ms Beyers wrote to Mr Tannous seeking the plaintiff's consent to proposed orders in a draft notice of motion. These are the same orders as are in the notice of motion before me.
On 15 November 2021, Mr Tannous wrote to Ms Beyers objecting to the proposed orders and confirming that the plaintiff was to be examined by another rehabilitation expert.
On 30 November 2021, Ms Beyers wrote to Mr Tannous indicating that it would be appropriate for the plaintiff to rely only on the evidence of a second rehabilitation expert and otherwise inviting the plaintiff to apply to the court for leave to rely on the evidence of two experts of the same speciality. Ms Beyers also indicated that, absent any further response from the plaintiff, the second defendant would proceed to file the notice of motion presently before the Court.
On 24 February 2022, the plaintiff served the report of Dr Steven Buckley, consultant physician in rehabilitation medicine, dated 16 February 2022, on the second defendant.
The second defendant had arranged for the plaintiff to be assessed by their rehabilitation physician on 1 March 2022. That appointment has been deferred.

Consideration

This matter does not have a trial date and has not been allocated a judge for the final hearing. The defendants have not even filed their expert evidence as yet. An advance ruling is sought at this early stage under s 192A of the Evidence Act which in these terms: Where a question arises in any proceedings, being a question about - (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.
Section 192A was enacted following the decision of the High Court in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. A majority of the Court held that the Evidence Act, as then in force, did not provide for the power to give an advance ruling as to how the discretions in s 135 or s 137 would be exercised. As Gleeson J observed in Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324, at [21]: "Section 192A permits but, does not compel, advance rulings to be given on the admissibility of evidence: Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 at [55]. Whether the Court should make an advance ruling is a 'discretionary case management decision': NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 AT [40]; Beslic v MLC Ltd [2015] NSWSC 908 at [33]."
Her Honour went on to observe at [22] and [24]: "The authorities indicate that 'some good reason should be advanced in order that the court exercise jurisdiction under s 192A': … It may, for example, be appropriate to give an advance ruling 'if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required': TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [42] (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where 'a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now': …" … A sound reason to refuse to give a ruling under s 192A may exist where the proceeding is in its infancy, the issues have not yet been joined because the pleadings have not closed and it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing …."
The nub of the second defendant's argument is that having regard to the relevant Practice Note, it would be unfair to permit the plaintiff to defer its decision as to whether it relies on the report of Dr Bowers until closer to the final hearing.
Supreme Court Practice Note SC CL 7 concerns the Professional Negligence List. Clauses 31-34 are directed at expert evidence in such matters. Clause 31 identifies the Court's concern at the number of witnesses in such matters and cl 32 notes that the Court may reject the tender of an expert report it considered unnecessary, refuse to allow the expert to be called and disallow costs associated with obtaining that witness. Clause 33 acknowledges that there will be cases where more than one expert may be required but that such evidence should ordinarily be given concurrently. Significantly, cl 34 relevantly provides that: "(a) As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to: (i) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and (ii) two experts of any other kind. (c) All expert evidence will be given concurrently unless there is a single expert appointed or the Court grants leave for expert evidence to be given in an alternate manner."
Section 135 of the Evidence Act provides for a general discretion to exclude evidence and is in these terms: 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. (Emphasis added.)
The second defendant contends that the probative value of Dr Bowers' report is substantially outweighed by the danger that the evidence would be "unfairly prejudicial" to a party. "Probative value" is defined in the Dictionary to the Evidence Act as "[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." The second defendant did not contend otherwise than that the report had probative value, although it was common ground that the probative value of the report was reduced by the fact that Dr Bowers could not be tested on the expert opinions expressed in it.
Although "probative value" is defined in the Evidence Act, the term "unfair prejudice" is not. It been held, in the context of a criminal trial, that the danger of "unfair prejudice" within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: "The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case ...".
Mr Hutchings contended that the "unfair prejudice" arose from three factors: the inability to cross-examine Dr Bowers, the unfair cost of having to send two plaintiff's expert reports to the second defendant's expert, and the fact that the Practice Note stipulates that usually only one expert is to be relied upon in each area of expertise.
Turning to the first of these three submissions, Mr Hutchings did not suggest that there was any risk that the trial judge would misuse the evidence in Dr Bowers' report in a way logically unconnected with the issues in the case. Rather, he relied upon the decision of Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) where at [59] his Honour noted that "unfair prejudice" can include an inability to cross examine as follows: "The expression 'unfairly prejudicial' is not defined in the Act. Despite some obiter remarks of McHugh J to the contrary in Papakosmas v The Queen [1999] HCA 3 7; (1999) 196 CL R 297, 325 at [93] it has been accepted at an intermediate appellate level that unfair prejudice can include an inability to cross-examine: Bakerland Pty Ltd v Colridge [20 02] NSWCA 30 at [ 55] per Giles JA (Heydon JA and Grove J agreeing). A series of first instance judgments in this Court are to the same effect: see the authorities collected by Sackville J in Seven Network v News Ltd [20 05] FCA 1348; ( 2006) 224 ALR 317, 322 at [20]."
His Honour went on to note at [60] that: "On the other hand, a number of decisions have held that some circumspection should be exercised in judge-alone trials where the risk of the unfairness is more readily ameliorated: see, for e.g., Seven Network at [21]."
The example provided by his Honour in that passage was the following observation by Sackville J, albeit in the context of s 136 of the Evidence Act, in Seven Network v News Ltd [200 5] FCA 1348; (2 006) 224 ALR 317, at [21]: "In my opinion, considerable care should be exercised before s 1 36 of the Evidence Act is invoked to limit the use of evidence on the ground that its use might be unfairly prejudicial to a party in a procedural sense. I agree with Mr Sheahan that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the Court to make a direction limiting the use of otherwise admissible evidence."
This aspect of the concept of "unfair prejudice" was recently considered by Bell P (as his Honour then was) in Decision restricted [2022] NSWCCA 19 (Beech-Jones CJ at CL and I in agreement) at [34] in these terms: "The inability to cross-examine the maker of a statement or the author of a document may also be a source of prejudice to a party, but the analysis of whether it amounts to unfair prejudice, and whether any such unfair prejudice outweighs the probative value of the evidence in any given case, is a more nuanced exercise. As Wood CJ at CL observed twenty years ago in R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [126] (Suteski), 'the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive' of the issue presented by both of ss 135 and 137 of the Evidence Act. Those provisions call for an analysis of the character of the evidence involved and of the nature or strength of the potential prejudice to the accused: Suteski at [127]." [Emphasis in original.)
Similarly, as Heydon JA (as he then was) had earlier observed in R v Clark [2001] NSWCCA 494; 123 A Crim R 506; at [164]: "...if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or were often to be a significant factor in justifying, a decision to exclude evidence in the court's discretion under s 135 or by reason of a finding of 'unfair' prejudice under s 137, the result would be to write the hearsay exceptions out of the Act to a large extent."
Although it is to be accepted that the inability to cross-examine might, in some circumstances, go towards establishing "unfair prejudice" within the meaning of s 135 (and s 137) of the Evidence Act, I am not satisfied that it has been established in this case. Dr Bowers' report will be given less weight as there has been no cross-examination on it. Significantly, Mr Hutchings conceded during oral submissions that he had no idea what the second defendant's rehabilitation expert was going to opine, and it was possible that he or she would agree with Dr Bowers in some or all respects. That possibility highlights the difficulty in assessing any prejudice at this early stage of the proceedings.
The second argument concerned the cost to the second defendant of having to send two expert reports to the second defendant's rehabilitation expert for consideration reports: both Dr Bowers and Dr Buckley. In the context of the cost of this litigation as a whole, I do not consider that to be a significant factor either taken alone or in connection with the other two arguments. In any event, although it is to be accepted that the concept of "unfair prejudice" in s 135 can encompass procedural unfairness, the potential for further costs is not the sort of "unfair prejudice" contemplated by ss 135 and 137.
The second defendant's third complaint is that the plaintiff should not be permitted to adduce similar expert rehabilitation evidence from two specialists, in circumstances where the Court's Practice Note contemplates only one expert from any given specialty being relied upon by each party. It was accepted that Dr Bowers can no longer participate in the conclave and that it will be Dr Buckley who will do so but it was submitted that should the plaintiff be permitted to rely on the report of Dr Bowers and the evidence of Dr Buckley, the additional weight of Dr Bowers opinion might satisfy the Court that the plaintiff's case is more persuasive by sheer force of numbers. In other words, even if it is given limited weight, it still has the potential to prejudice the defendants' interests. I do not accept this submission. The issues for the trial judge will be determined on an assessment of quality of the evidence and not simply by weight of numbers.
I have had regard to Mr Hutchings' submission that Dr Bowers' report could be excluded now and then reconsidered at trial. Revisiting a ruling is technically possible, as Leeming JA (with whom R A Hulme and McCallum JJ agreed) observed in KH v R [2014] NSWCCA 294 at [24]. The difficulty in this case is that if Dr Bowers' report is not provided to the defendants' rehabilitation expert now, then it will be too late for the admissibility of his report to be re-considered at trial. On the other hand, if both reports are provided to the defendants' rehabilitation expert now there would be no difficulty should the trial judge reconsider the admissibility of Dr Bowers' report at the hearing.
Mr Hutchings relied on the fact that an advance ruling was recently made by Garling J in Searle v Commonwealth of Australia [2018] NSWSC 105. But that was a very different case, and the relevant ruling had the potential to impact on the evidence of many witnesses. When I raised this with Mr Hutchings, he conceded that the question of admissibility of Dr Bowers' report would not affect the number of witnesses at trial nor would it affect any of the lay evidence at the trial.
As for the timing of this application, Mr Hutchings relied upon these proceedings being at an early stage as a factor militating in favour of granting the ruling sought. That was on the basis that the plaintiff has had time to get a supplementary report. It seems to me that, contrary to this submission, the distance until the final hearing is a discretionary factor weighing against any advance ruling being made. Mr Hutchings conceded during oral submissions that he was unaware of any decision in which a plaintiff had spent money obtaining an expert report and that expert dies and the report is dealt with by way of exclusion rather than as a matter of weight.
For all of these reasons, I consider this application to be premature and I do not propose to make the advance ruling sought. It will be open to the trial judge to consider such an application at the final hearing.
Lastly, a further matter complained of by the second defendant is that the plaintiff has not as yet sent any notice under s 67 of the Evidence Act that he intends to rely upon hearsay evidence as foreshadowed in their correspondence in July 2021. For my part, it is not apparent to me that the expert opinions in Dr Bowers' report are hearsay representations, although what the plaintiff told Dr Bowers and upon which he based his opinion would be second-hand hearsay and amenable to a direction under s 136 of the Evidence Act.

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