Kim Fisher v Sandara Rotheraine [2009] NSWDC 269

New South Wales District Court

CITATION: Kim Fisher v Sandara Rotheraine [2009] NSWDC 269

JUDGMENT DATE: 31 August 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The evidence is admissible

CATCHWORDS: CIVIL LAW - evidence - admissibility of medical report - whether assumptions in report need to be established to civil standard - are doctor's examinations and observations sufficient

LEGISLATION CITED: Evidence Act 1995 s 76

CASES CITED: Rhoden v Wingate [2002] NSWCA 165

PARTIES: Kim Fisher Sandara Rotheraine

FILE NUMBER(S): 2662/05

COUNSEL: Ms Welsh Mr B Kelleher

SOLICITORS: Brydens Compensation Lawyers Hunt & Hunt

JUDGMENT 1. Ms Welsh, who appears for the plaintiff, has tendered a medical report as part of her case. It is a report of Dr Max Ellis, dated 8 April 2009. It contains, on the last page, this assertion: "In the accident, her right knee suffered ligamentous and cartilaginous injury." Based upon that diagnosis, the author, Dr Ellis, expressed the opinion that the plaintiff required an MRI examination and arthroscopy, and provided an estimate of the cost of such investigations, which was $6,000.

2. Mr Kelleher, who appears for the defendant, objects to the passage which I quoted. His objection is that that passage breaches the opinion rule which is contained in s 76 of the Evidence Act 1995.

3. Ms Welsh relies upon the exception to the opinion rule provided by s 79, which is that a person with specialised knowledge based upon the person's training, study or experience may express an opinion about a topic.

4. Mr Kelleher's objection is that although Dr Ellis has specialised knowledge based upon training, study or experience, the doctor has not expressed in the report any basis upon which the diagnosis of right knee ligamentous and cartilaginous injury could be based. Mr Kelleher points to passages in the report, and in earlier reports, which record Dr Ellis examining Ms Fisher's right knee and noting, for example, swelling and restricted movements. In particular, the doctor noted in examinations that no internal derangement could be demonstrated.