Supreme Court New South Wales Medium Neutral Citation: Wadsworth v Hamilton [2022] NSWSC 396 Hearing dates: 16 March 2022 Date of orders: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Common Law Before: N Adams J Decision: (1) The notice of motion is dismissed. (2) The costs of the notice of motion filed on 17 December 2021 be costs in the cause. (3) The parties have leave to approach my associate within seven days with an agreed timetable for the filing of evidence. Catchwords: EVIDENCE – expert evidence – advance rulings – plaintiff's rehabilitation expert provided report and subsequently died – unfair prejudice under Evidence Act s 135 – unavailability for cross-examination – cost of responding to two expert reports – Practice Note limits parties to one expert per specialty – second defendant yet to obtain its expert evidence – premature application under s 192A – notice of motion dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW), ss 63, 67, 69, 135, 137, 192A Cases Cited: Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 Colby v The Queen [1999] NSWCCA 261 Decision restricted [2022] NSWCCA 19 KH v R [2014] NSWCCA 294 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 Searle v Commonwealth of Australia [2018] NSWSC 105 Seven Network v News Ltd [2002] FCA 1348; (2006) 224 ALR 317 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Category: Procedural rulings Parties: Wayne Wadsworth (Plaintiff/Respondent) Grace Hamilton (First Defendant) Mina Gobrial (Second Defendant/Applicant) Representation: Counsel: Mr M Perry (Plaintiff/Respondent) Ms F McGinley (First Defendant) Mr M Hutchings (Second Defendant/Applicant) Solicitors: Gerard Malouf & Partners (Plaintiff/Respondent) Mills Oakley (First Defendant) HWL Ebsworth Lawyers (Second Defendant/Applicant) File Number(s): 2021/00075661 Publication restriction: Nil. Judgment 1. On 17 March 2021, the plaintiff, Mr Wayne Wadsworth, filed a statement of claim against the first and second defendants. The first defendant, Ms Grace Hamilton, is a qualified practising podiatrist and the second defendant, Dr Mina Gobrial, is a qualified practising medical practitioner. The plaintiff brings a claim in negligence based on an allegation that treatment he received by the first defendant led to medical complications the second defendant failed to properly treat. 2. By notice of motion filed on 17 December 2021, the second defendant seeks an order pursuant to s 192A of the Evidence Act 1995 (NSW) that the expert report of Dr David Bowers dated 12 April 2021 is inadmissible in these proceedings. The plaintiff opposes the making of the order and reserves his right to rely on Dr Bowers' report. The first defendant adopts the position of the second defendant. 3. This motion came before in my capacity as duty judge. The second defendant relied upon an affidavit of his solicitor, Ms Leonie Beyers, sworn on 16 December 2021 and her supplementary affidavit sworn on 10 March 2022. The plaintiff relied on an affidavit of his solicitor Mr Jonathon Tannous, sworn on 9 February 2022. Background to the claim 1. The plaintiff claims that on 15 May 2019 he presented to the first defendant for podiatry treatment. After taking the plaintiff's medical history, the first defendant proceeded to treat the plaintiff by cutting and filing his toenails and debriding skin from his heels. During this treatment, the plaintiff experienced pain in his great left toe and was informed by the first defendant that she had accidentally cut his great left toe during the treatment. The first defendant advised the plaintiff to dress the injured toe when he returned home but provided no further treatment or advice. 2. On 21 June 2019, the plaintiff presented to the second defendant complaining of, inter alia, blistering and ulceration around his great left toe, difficulty walking and pain and sensory discomfort in his hands and feet. The second defendant referred the plaintiff for CT scans of the brain, cervical spine and lumbar spine and prescribed oral antibiotics (Doxycycline 100mg). 3. On 25 June 2019, the plaintiff again presented to the practice of the second defendant complaining, inter alia, of an inability to walk. The second defendant referred the plaintiff to John Hunter Hospital ("JHH") for assessment, where the plaintiff was transported by ambulance, admitted and placed on intravenous antibiotics (Cefazolin). 4. The plaintiff remained in hospital until 2 October 2019 when he was discharged with diagnoses of an epidural abscess (around the cervical spine, C4-C7), C3-C6 laminectomy, diabetic foot ulcer, NSSA [sic] (MSSA, Methicillin-susceptible Staphylococcus Aureus) bacteraemia and Charcot's arthropathy. The plaintiff was prescribed oral antibiotics (Cephalexin 500mg) and had arrangements for follow-up treatment. 5. On 14 November 2019, the plaintiff consulted the second defendant's medical practice by telephone noting that his lower back pain had flared up since being discharged from JHH. On 15 November 2019, the plaintiff presented to the second defendant complaining of lower back pain radiating to his leg. The second defendant prescribed an analgesic (Endone). 6. Between about 15 and 27 November 2019, the plaintiff's condition deteriorated, with signs of right-hand weakness, progressing sensory deficit and new right-arm weakness. He experienced two falls. On 27 November 2019, the plaintiff was readmitted to JHH due to a recurrent epidural cervical spine infection, where he was treated with antibiotics. He was discharged on 20 January 2020. 7. The plaintiff alleges that the care administered to him by each of the first and second defendants was in breach of the duty of care owed in the relevant sense under the Civil Liability Act 2002 (NSW) and that he has sustained harm as a result. Such harm includes: back pain; infection of and other complications in respect of his great left toe; spinal abscess; MSSA [sic] Bacteraemia; staphylococcus aureus infection into the epidural space and spinal canal; surgery for drainage at C4 to C7 level; recurrent osteomyelitis; sensory deficit and various limb weakness. Dr Bowers' Report 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. The second defendant had arranged for the plaintiff to be assessed by their rehabilitation physician on 1 March 2022. That appointment has been deferred. The submissions 1. The second defendant seeks a ruling that the plaintiff cannot rely upon Dr Bowers' report. It was submitted that the Court should exercise its jurisdiction under s 192A of the Evidence Act and exclude the report under s 135 of the Evidence Act. 2. The second defendant advanced three reasons as to why the Court should exercise its discretion at this early stage of the proceedings to exclude Dr Bowers' report under s 135 of the Evidence Act. 3. First, it was submitted that Dr Bowers' death and resultant unavailability for cross-examination at trial works unfair prejudice on the second defendant within the meaning of s 135 of the Evidence Act. Reliance was placed on the decision of Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 at [59]-[61]. 4. Second, it was submitted that it was unfairly prejudicial for the second defendant to have to incur the cost of sending two expert reports (ie from Dr Bowers and Dr Buckley) to her rehabilitation expert for consideration. 5. Thirdly, it was submitted that it was unfairly prejudicial that the plaintiff should be permitted to adduce similar expert rehabilitation evidence from two specialists, in circumstances where the relevant Practice Note provides that one expert from any given specialty is the appropriate course. It was submitted that the second defendant would realistically be limited to one rehabilitation expert. 6. Overall, it was submitted that the plaintiff's position ignores the complexities of the problem the second defendant faces given the prospect of the conduct of the joint conference being frustrated. 7. The plaintiff's position is that it is too early in the proceedings for the Court to make the advance ruling sought by the second defendant. It was conceded that the second defendant's argument was "not wholly without merit" but that it was premature to raise it at this time. Consideration 1. 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. 1. 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]." 1. 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 …." 1. 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. 2. 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." 1. 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.) 1. 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. 2. 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 ...". 3. 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. 4. 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]." 1. 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]." 1. 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." 1. 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.) 1. 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." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. Conclusion 1. The second defendant also sought orders as to the fixing of a timetable for the service of expert rehabilitation evidence between the plaintiff and defendants. No dates were provided to me such that I could fix such a timetable. Despite this, if the parties want to provide that timetable to me within seven days, I am prepared to make those orders in chambers. 2. The position of the parties as to costs was that costs should be in the cause. ORDERS 1. I make the following orders: 1. The notice of motion is dismissed 2. The costs of the notice of motion filed on 17 December 2021 be costs in the cause. 3. The parties have leave to approach my associate within seven days with an agreed timetable for the filing of evidence. ********** 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: 08 April 2022