SAUNDERS v McDONALD and ORS [1998] NSWCA 202

SAUNDERS v McDONALD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, BEAZLEY and STEIN JJA 20 October 1998, 20 November 1998

[1998] NSWCA 202

EVIDENCE — admissibility of evidence — expert evidence — where medical expert gave lay evidence — whether expert report required — common law rule — District Court Rules Pt28 r8

PRACTICE AND PROCEDURE — refusal to admit evidence — whether new trial should be ordered — "substantial wrong or miscarriage" — discussion of common law and statutory tests — District Court Rules Pt51 r16 (now Pt51 123)

The appellant was the plaintiff in District Court proceedings for personal injury in relation to two motor vehicle accidents. There were two issues on appeal:

¢ whether the trial judge erred in refusing to allow Dr Bennett, an expert witness in the appellant's case, to give evidence of casual, non-professional observations he had made of the appellant in her workplace;

¢ whether, if such evidence had been admitted, it would have made a difference to the case such that a new trial should be ordered.

HELD, allowing the appeal:

1. The trial judge wrongly refused to admit evidence of Dr Bennett's observations of the appellant.

(a) The evidence was not "expert evidence" of the type required by Pt28 r8 to be contained in a report. The mere fact that observations are made by an expert witness in a non-professional, non-expert capacity does not convert lay evidence into material which is required to be contained in a report.

(b) Even if such evidence is "expert evidence" under Pt28 r8, it complied with that rule because it was in "substance" concerned with the matters contained in Dr Bennett's report, which was properly adduced in evidence.

(c) Even if the evidence was "expert evidence" under Pt28 r8 and did not comply with the rule because it was not substantially the same as the report tendered in evidence, it had become relevant because of the introduction of video evidence. The trial judge had a discretion under Pt28 r8 to accept expert evidence not contained within an expert report. Given the importance of the evidence to both the assessment of the appellant's condition and her credibility, the trial judge's discretion miscarried when he refused to admit the evidence.