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. 2. The refusal of the trial judge to admit Dr Bennett's evidence occasioned a "substantial wrong or miscarriage of justice" in accordance with the then Pt51 r16 (now PtS1 123). (a) It is not necessary to decide whether a different tests exists at common law and under the Rules as to the onus and standard of proof applicable to establish that a new trial should be ordered where evidence has been wrongly rejected. (b) If Dr Bennett's evidence had been admitted, the trial judge's findings in respect of the appellant's medical evidence and her credibility could have been affected. Sheller JA I agree with Beazley JA Beazley JA This is an appeal from two decisions of Craigie DCJ in respect of the appellant's claims for damages for personal injuries she sustained in two motor vehicle accidents, the first occurring on 13 October 1987 and the second 2 UNREPORTED JUDGMENTS on 4 December 1987. Liability was admitted in respect of the first accident. His Honour found that the second respondent was negligent in respect of the second accident. That finding is not challenged. Two issues only arose on appeal: (i) whether the trial judge erred in refusing to allow Dr Bennett, a witness in the appellant's case, to give evidence of observations he had made of the appellant; and (ii) whether, even if the evidence was wrongly rejected, a new trial should be ordered. Wrongful Rejection of Evidence The appellant's case was that she sustained neck and back injuries in both accidents and that she was incapacitated in various ways as a result, including having a reduced capacity to work, being unable to stand for long periods, to walk and bend freely or to move her neck freely. It was also part of her case that she had a lot of pain but that she had good and bad days. During the course of her cross-examination the first respondent's counsel showed two videos of the appellant working in a video shop, taken on 17 October 1995 and 12 December 1996. Counsel for the first respondent sought leave to have Dr Bennett view the videos at the same time (to save showing it a second time to Dr Bennett during his evidence). Dr Bennett was the appellant's general practitioner at the time of the trial and had been since January 1993. When questions arose as to the necessity for Dr Bennett to see the videos, counsel for the first respondent submitted to the trial judge: "T think the doctor should see it because I'd like to ask him some questions based upon what's there." As might be expected with video evidence presented in a defendant's case, these videos depicted the appellant with no obvious incapacity. The trial judge permitted Dr Bennett to be examined and cross examined on the effect the videos had on the opinion he had expressed in his reports. In his cross examination he gave the following evidence: "Q: And therefore, you would agree would you not with me, with the comment that I make, taken from your report Exhibit C1, that what you observed on the video was at odds with what you were told was the severity of your symptomatology? A: I suppose you could say that was true." This answer was hugely detrimental to the appellant's case. It not only affected the appellant's medical evidence, it also undermined her credibility. As events turned out, Dr Bennett lived next door to the video store and had observed the appellant working there on a number of occasions. According to a file note of the appellant's solicitor Dr Bennett could give evidence that: "... he often called in there and had noticed [the appellant] and that someone else did reach up and get videos for her and lift things for her and she looked stiff and sore without her noticing him." There was no reference to these observations in Dr Bennett's medical reports, which referred only to his clinical observations of the appellant. Once it became apparent that the respondent was relying upon the video evidence, senior counsel for the appellant sought leave to have Dr Bennett give evidence of his observations of the appellant in the video store. The trial judge refused, stating that it was outside the substance of the matters raised in Dr Bennett's medical report as required by Pt28 r8 of the District Court Rules. URJ SAUNDERS v McDONALD (Beazley JA) 3 Pt28 r8 governs the giving of expert evidence in personal injuries claims. In particular it provides that evidence may not be given by an expert except in accordance with an expert report, served in accordance with the Rules. An expert report is defined in subr1 to mean: "... a statement by an expert in writing which sets out the expert's opinion and the facts on which the opinion is formed and which contains the substance of the expert's evidence which the party serving the statement intends to adduce in evidence in chief at the trial." R8 further provides: " (3) Unless the Court otherwise orders, in proceedings to which this rule applies, each party to the proceedings shall, at least 28 days before the trial, serve expert's reports and hospital reports on each other party who has an address for service in the proceedings. (6) In proceedings to which this rule applies, except with the leave of the Court or by consent of the parties - (a) the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert's report served in accordance with this rule (7) For the purpose of subr(6), evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence." Subr7 specifies that the report need only contain the "substance of the matters sought to be adduced in evidence". It should be noted, however, that subr6 gives to a trial judge a discretion to admit oral evidence although the substance of such evidence is not contained in a report. In my opinion, the trial judge erred in refusing to allow Dr Bennett to give evidence of the observations he had made of the appellant. In the first place, I do not consider that such evidence was "expert evidence". It was evidence of observations made by a medical witness in his personal capacity and unassociated with his professional practice. If similar observations had been made by a lay person there would have been no requirement for the substance of such evidence to be contained in a report or other document and served on the other party to the litigation, or for the other party even to be notified of the proposed evidence. The mere fact that observations were made by an expert witness in a non-professional, non-expert capacity does not convert that evidence into material which is required to be contained in an expert report under the Rules. Secondly, if, contrary to my view expressed above, this material was properly characterised as "expert evidence" for the purposes of Pt28 r8, it seems to me that there had been compliance with the rule. In his first report Dr Bennett referred to the appellant's "intermittent neck pain and stiffness, as well as lower back discomfort". He referred to the appellant having "some restrictions" even "during her periods of relative quiescence". In his report of 31 August 1995 Dr Bennett referred to an improvement in the appellant's neck condition, but noted she had persistent disabilities of the lower back "on a daily basis". The "substance" of his evidence, therefore, was that the appellant had ongoing problems with her neck and back, that she had periods of "quiescence" in respect of her back and that there had been an overall improvement in her neck condition. Dr Bennett's observations of the appellant in the video store was consistent with his clinical 4 UNREPORTED JUDGMENTS observations and assessment. There was no new or different "substance" in this evidence which was required to be separately stated in a report. Finally, and again on the assumption that this part of Dr Bennett's evidence fell within Pt28 r8 but assuming that the evidence was not in "substance" covered by the report, it had become relevant because the first respondent's counsel had introduced the video evidence. The purpose of adducing the video evidence was to attempt to demonstrate that the appellant did not suffer from the disabilities which she claimed. Dr Bennett's evidence, which would have provided independent support for the appellant's case, was directly relevant to the video evidence introduced by the respondent and was also relevant to the appellant's credit. It was not claimed that the respondent would have suffered any prejudice had the evidence been admitted. Given the importance of this evidence to the overall assessment of the appellant's case, I am of the opinion that the trial justice's discretion miscarried when he refused to allow the evidence to be adduced. Accordingly, there was no basis upon which his Honour could have refused to allow the evidence to be given. I should note at this stage that counsel for the first respondent did not argue that his Honour had not erred in refusing to allow this evidence to be given. Counsel for the second respondent did. Should a New Trial Be Ordered? The common law rule as to the grant of a new trial where evidence has been wrongly rejected was stated by Dixon CJ in Balenzuela v de Gail & Anor (1959) 101 CLR 226 at 236: "\.. if it appears to the court deciding an application for a new trial that an error of law has been made at the trial [the effect of which was] improperly to limit or enlarge the evidentiary materials by which it is not an unreasonable hypothesis to suppose the judgment of the jury might be affected, even if illogically... ... It is necessary to treat it as involving a substantial wrong or miscarriage" leading to the grant of a new trial. Earlier, the Chief Justice had said at 232 that where evidence was wrongfully rejected a new trial ought to be granted unless the Court had: "some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so." Balenzuela involved a jury trial. However, the same principle has been applied in non-jury trials. In Cameron v Baker (unreported, New South Wales Court of Appeal, 6 August 1980) (a non-jury trial) Reynolds JA, after having determined that the trial judge in that case should have admitted certain expert evidence which had not been contained in an expert's report, stated at 5: "[t]o be entitled to any remedy the appellant would have to show not only that the evidence should have been received, as I think it should have been, but, further, that its reception could have affected relevant findings of fact upon which the assessment was based. Two remedies are available: first, the receipt by this court of the evidence in question, followed by this court's assessment of damages; or, if the nature of the case requires, an order for a new trial. [Supreme Court Act, 1970 s75A(10)]." See also Stead v State Government Insurance Commission (1986) 161 CLR 141. URJ SAUNDERS v McDONALD (Beazley JA) 5 In New South Wales the Supreme Court Rules specify the circumstances in which a new trial may be ordered on the ground of the wrongful rejection of evidence. The relevant rule at the time of trial in this matter was Pt51 r16(1) (now Pt51 123). R16(1) provided: "(1) The Court of Appeal shall not order a new trial: (a) on the grounds of misdirection; (b) on the ground of the improper admission or rejection of evidence; or (c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury, unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned." It was submitted by counsel for the second respondent that the effect of rl6 was to cast the onus upon the party seeking a new trial to demonstrate that some substantial wrong or miscarriage had been occasioned by the wrongful rejection of evidence. In Balenzuela v de Gail, Dixon CJ considered whether a different onus applied depending upon whether the common law rule or the Supreme Court equivalent of the English Supreme Court Rules applied. The relevant Supreme Court rule at the time of the Chief Justice's comment was in substantially the same terms as r16. In the end result the Chief Justice saw little importance in the question. He stated at 233-234: "[o]ne might suppose that upon a question depending not upon proof of an issue by evidence but upon reasoning as to the effect of what from a record appears to have occurred at a trial, it would not matter much upon which side the duty lay of persuading the court that a given error involved a substantial wrong or miscarriage." His Honour at 234-235 referred, however, to a possible distinction between the rule at common law and the statutory provision, namely that under the common law rule: "it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued, while under the judicature rule the burden is the other way. The form in which the judicature rule is cast seems to indicate an intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error." The Chief Justice considered, however, that "the existence of the distinction is doubtful". In this case, the video evidence formed a significant basis for his Honour's finding that the appellant did not suffer any ongoing disability arising from her accidents beyond eight to nine months after the second accident. In the course of coming to this conclusion, his Honour made an adverse finding as to the appellant's credit, a matter to which I will turn shortly, and was critical of the appellant's medical evidence. He said: "Of...concern are the reports of the doctors introduced on behalf of the [appellant] where what is reported in the report itself does not indicate the source of the observation made by the doctor... " 6 UNREPORTED JUDGMENTS His Honour then stated: "The problem with the evidence of Dr Bennett in keeping with other medical practitioners consulted by the plaintiff since her move to Queensland is that they rely almost in the main on the history given to the doctor by the plaintiff." His Honour finally concluded in respect of the medical evidence: "On the medical evidence I indicate that I am of the view and I am satisfied that the [appellant's] aftermath of the October 1987 incident had virtually ceased by 04/12/87 and the late 1987 incident ceased no later than October, 1988 when she commenced full time work. I therefore consider that, that view is reinforced by the continued assertions of the [appellant] as to what her condition is and the contrast that has with the images of her in Exhibits 1 and 2. Further, I am mindful of the condition diagnosed by Dr Lane and supported by Dr Bennet (sic) on behalf of the [appellant] and also supported by Drs Bodel and Cameron that the effects of those incidents have long ceased to have any foundation due to the incidents of 1987 and that the [appellant] has developed a chronic pain syndrome unconnected with those incidents." Had Dr Bennett's observations of the appellant at the video shop been admitted into evidence, the criticism which the trial judge made of his evidence, and which formed part of the foundation upon which he rejected it, would have been displaced. Further, Dr Bennett's concession that what he saw on the videos "was at odds... with the severity of what [the appellant told him] of her symptomatology" would not have been made, or, at least, would not have been made in the same apparently unqualified terms. It is clear in my opinion that the trial judge's findings in respect of the appellant's medical evidence generally and Dr Bennett's evidence in particular could have been affected had Dr Bennett's additional evidence been admitted. In addition to his Honour's adverse finding in relation to the appellant's medical evidence, his Honour did not accept the appellant as a witness of credit. Her credit had been vigorously challenged by the respondents and the videos were but one stratagem used by them to attack the appellant. The trial judge acknowledged the significance of this attack. He said at 2: "A very serious issue has been raised by the defendants, namely that of the credit of the plaintiff in as much as it is suggested that the plaintiff has been exaggerating her evidence as to the impact of these two incidents on her life and generally in her quest for compensation for the aftermath of these incidents." The attack was successful. His Honour found that the appellant "did not present as a convincing witness". Had his Honour allowed Dr Bennett's evidence to be given, it could also have affected the trial judge's finding in respect of credit. For these reasons I am of the opinion that there has been a substantial miscarriage of justice. If there is a distinction between the common law and statutory test, I am satisfied that the appellant satisfied the statutory test as formulated by the Chief Justice. In coming to this conclusion I have not drawn any distinction between the first and second accident. The first respondent submitted that assuming the evidence should have been admitted it could not have affected the result in respect of the first accident because of the trial judge's finding that the effect of the injuries sustained in the first accident had "largely resolved" by the time of the second accident. He submitted that that finding was unchallengeable given that the appellant's evidence was that at the time of the second accident she "felt okay, not 100%". URJ SAUNDERS v McDONALD (Stein JA) 7 However, that evidence has to be understood in the light of the evidence that the night of the second accident was the first occasion the appellant had been out since the first accident. Given the trial judge's rejection of the appellant as a witness of credit, a finding based in a substantial way on the appellant's presentation on the videos, it is not possible to differentiate between the effect the reception of this evidence might have had on the trial judge's determination in respect of the first and second accidents. In my opinion, a substantial wrong or miscarriage has been occasioned and there should be a new trial in each matter on the issue of damages. I propose the following orders: 1. Appeal allowed. 2. Verdicts and judgments in the court below set aside. 3. Order a new trial on the issue of damages in each matter. 4. The costs of the first trial to be in the discretion of the trial judge on the rehearing. 5. The respondents to pay the appellant's costs but to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled. Stein JA I agree with Beazley JA Appeal allowed. Verdict and judgment in the court below set aside. Order a new trial on the issue of damages in each matter. The costs of the first trial to be at the discretion of the trial judge on the rehearing. 5. The respondents to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 (NSW) if so entitled. BYNE Counsel for the appellant: G Miller QC/G Turner Solicitors for the appellant: T D Kelly & Co Counsel for the first respondent: R S McIlwaine SC Solicitors for the first respondent: Adelsteins Counsel for the second respondent: R Tonner/G Sewell Solicitors for the second respondent: Moray & Agnew