Burgess v Kelspur [2001] NSWCC 156

Reported Decision : (2001) 21 NSWCCR 490

Compensation Court of New South Wales

CITATION : Burgess v Kelspur [2001] NSWCC 156 PARTIES : Donna A Burgess Kelspur Pty Limited MATTER NUMBER(S) : 41841 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9 March 2001 EX TEMPORE JUDGMENT DATE : 03/09/2001

FOR APPLICANT: Mr G B Curran LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M R Gracie

JUDGMENT: 1. Objection has been taken at this point to the tender by the applicant of an autopsy report prepared under the Coroners Act in respect of the death of the deceased in this case and its causes. It is signed by Dr L Schwartz and is dated 3 August 1999 and after Dr Schwartz' signature the initials "M.D." appear and under her signature is written the words "NSW Institute of Forensic Medicine". Annexed to the report is a report of Dr T Gaha dated 21 May 1999 being a neuropathology report on maproscopic and microscopic examination of the deceased's brain. Dr Gaha's signature has his or her name underneath it with underneath that the words "neuropathologist". 2. Annexed also to the document is an HIV testing document said by Mr Gracie for the respondent to be irrelevant to his objection, followed by a report of the division of analytical laboratories of the Institute of Clinical Pathology and Medical Research addressed to Dr Schwartz and signed by a pathological analyst whose signature is illegible. The document relates to toxicology testing of the deceased's blood and liver. 3. The objection Mr Gracie takes to the admissibility of the document is twofold. Firstly he says that Dr Schwartz has not in her report proper reflected correctly the results of the other tests evidenced by the documents to which I have just referred. Secondly, he submits that Dr Schwartz' qualifications to express the conclusions which she does in her report proper are not sufficient in that the letters "M.D." after her signature would appear simply to indicate that she is medically qualified but a general practitioner only. 4. It is common ground that the autopsy report and annexures to which I have just referred have been served in accordance with s 135 of the Workers Compensation Act 1987 ("The Act") and Pt 23 r 8 of the Compensation Court Rules made pursuant to it. It is urged by Mr Curran for the applicant that the report and its annexures are admissible both pursuant to s 135 and s 61 of the Evidence Act. Certainly the requirements of s 135 are satisfied where a document is a "medical report" within the meaning of that section and Pt 23 r 8, and I think it is. The mere fact that one of the annexures is signed by a person who may or may not be a medical practitioner is nothing in point; the report of Dr Schwartz interprets and analyses the testing referred to in the annexures and offers the opinion of a medical practitioner on them and the report is obviously a "medical report" of a medical practitioner within the meaning of s 135, and the annexures are simply direct evidence of the testing which was undertaken at Dr Schwartz' request which underlies the conclusions she reaches in her report, so that I conclude that s 135 permits the admission of the report and its annexures in their entirety, subject to the expertise point Mr Gracie takes. 5. I regard s 69 of the Evidence Act as a separate route to admission of documents including medical reports to which it applies, so that strictly s 135 and Pt 23 rule 8 do not have to be complied with in this case if the report and its annexures get in under s 69, but in any event, as I have said, s 135 has been complied with and provides another route to admissibility of the documents. Although it is therefore not strictly necessary for me to do so, I have considered the application of s 69 and I consider that it applies because the report and its annexures fall within the category referred to in sub par (i) of par (a) of s 69(1) as part of the records belonging to or kept by a person, body or organisation in the course of or for the purposes of a business, observing in passing that the expression "business", as I gather is uncontroversial, refers to the activities of government instrumentalities such as the office of the Coroner. 6. Secondly, I consider that the documents fall within s 69(2) because they contain representations made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts and representations made, on the basis of information directly or indirectly supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted facts. In the first category are Dr Schwartz' observations on examination of the body of the deceased and in the second category are Dr Schwartz' observations on the tests conducted by others, as evidenced by the annexures to the report and those annexures themselves. 7. I do not think, and I do not understand it to be urged by Mr Gracie in any event, that the exception in s 69(3) applies, because I do not understand the autopsy report to have been prepared for the purpose of conducting or in contemplation of or in connection with an Australian or overseas proceeding, or in connection with an investigation relating to or leading to a criminal proceeding. The sole purpose of the documents on their face, and I was permitted to examine them by Mr Gracie for the purposes of determining their admissibility, was to comply with the Coroners Act. There is no suggestion that an inquest was held or was likely to be held into the death of the deceased, at least in the face of the documents, nor that they were prepared for any other purpose, such as the prosecution of the applicant's rights in this Court. 8. In passing, s 69(5) would appear to be complied with in the sense that on the face of the document Dr Schwartz might reasonably be supposed to have had personal knowledge of the matters which she asserts on the basis of what she saw on the examination of the body of the deceased, and the same would appear to apply to the annexures to the report which refer to the direct examination of the things analysed by the authors of the documents. 9. Thus the autopsy report and its annexures is separately admissible under s 69 of the Evidence Act quite apart from s 135 of the Workers Compensation Act, subject to the expertise point taken by Mr Gracie. As to that, Clarke v Ryan (1960) 103 CLR 486 and Albrighton v Royal Prince Alfred Hospital (1979) 2 NSWLR 165 both appear to me as authority for the proposition that an opinion may be expressed by an expert if that person is in a position by virtue of his or her training, study or experience to do so. Those concepts would appear to underlie s 79 of the Evidence Act 1995 which indeed specifically uses the words "training, study or experience", which are also employed by Dixon J as he then was in Clarke v Ryan. 10. It seems to me that a person who one must presume is legally entitled to describe herself as a forensic pathologist (and one would infer this from the address appearing on the autopsy report, which is "NSW Institute of Forensic Medicine") exercising on the face of the document a duty under the Coroners Act 1980, would have the expertise appropriate to determine the cause of death of a deceased person examined by her. The weight of her opinions and the extent to which they are supported or otherwise by the testing results which she annexes to her report are, of course, another matter and will need examination later in this case, but it is my view that Dr Schwartz has the expertise required to express the opinions contained in her report which are, after all, prepared for the precise purpose of reporting under the Coroners Act 1980 as to the cause of death of the deceased. 11. Mr Gracie, as I understand him, does not challenge the expertise of the persons who undertook the testing referred to in the annexures to Dr Schwartz' report, but in any event the description of those persons in the testing documents and the purpose for which they were prepared, that is to say determination of the cause of death of the deceased for purposes of the Coroners Act would appear to me to indicate that those persons are appropriately qualified by their training, study or experience to express the opinions they do, the same applying as I have said to Dr Schwartz herself. 12. In consequence the autopsy report and the annexures to it to which I have referred become Exhibit A. 13. I wish to add something else to the reasons I have given on admission of Exhibit A. It is that as I observed in argument with Mr Gracie about the admissibility of Exhibit A, the lay facts asserted at the bottom of page 2 of Dr Schwartz' report, reading: This 26 year old man was found dead at home, a large number of empty containers of prescribed medication were found near the deceased. It appeared that in 1995 he suffered a work related low back injury and since then he was taking medication for pain control. would in my view have to be separately proved, as their appearance in Dr Schwartz's report simply indicates that they were assumed facts for the purposes of her report. The report should not be regarded as independently proving those facts and I shall not be so regarding it because, as I say, the lay facts referred to in the passage I have just quoted are matters which must be independently proved by lay evidence, or if appropriate, documentary evidence by the applicant. Mr G B Curran of counsel appeared for the applicant Mr M R Gracie of counsel appeared for the respondent